01994783_r
03-30-2001
James T. LaRue, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
James T. LaRue v. United States Postal Service
01994783
March 30, 2001
.
James T. LaRue,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01994783
Agency No. 1A-126-0012-99
DECISION
Complainant timely appealed the agency's decision dated April 27, 1999,
dismissing complainant's complaint pursuant to 29 C.F.R. � 1614.107(a)(2).
Complainant alleges that he was discriminated against on the bases of
race, sex, and disability when (1) on April 10, 1997, he was threatened
with removal; (2) from April 23 through December 22, 1997, he was denied
a change of schedule as a reasonable accommodation; (3) he was forced to
resign on December 22, 1997, due to management's failure to accommodate
him; (4) in January 1998, his requested reinstatement in the Mid-Hudson
P&DC was denied; and (5) on June 29, 1998, his request for reinstatement
in the Albany P&DC was denied.
The agency dismissed issues 1 and 2 of the complaint for untimely EEO
Counselor contact, and dismissed issues 3, 4 and 5 of the complaint
finding that the issues had not been brought to the attention of an
EEO Counselor. On appeal, the agency notes that claim 3, in the agency
decision, contained a typographical error and that the year of resignation
is 1997, and not 1998, as stated in the decision. The agency argues
that given the error, issue 3 should also be dismissed for untimely EEO
Counselor contact. The complainant, by brief in support of appeal,
argues that a mental incapacity prevented him from meeting the time
requirements. Complainant did not initiate EEO Counselor contact
until December 17, 1998, which is beyond the 45 day requirement for
issues 1 - 3. Complainant does not present adequate justification to
warrant an extension of the applicable time limit for contacting an
EEO Counselor for issues 1 - 3. Therefore, we find that issues 1 -
3 are properly dismissed pursuant to � 1614.107(a)(2). Furthermore,
we find that issues 4 and 5 clearly occurred more than 45 days prior to
complainant's initial EEO Counselor contact. Therefore, we find that
issues 4 and 5 are also properly dismissed pursuant to � 1614.107(a)(2).
The agency's decision dismissing the complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
The Commission may, in its discretion, reconsider the decision in this
case if the complainant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. The appellate decision involved a clearly erroneous interpretation
of material fact or law; or
2. The appellate decision will have a substantial impact on the policies,
practices, or operations of the agency.
Requests to reconsider, with supporting statement or brief, must be filed
with the office of federal operations (OFO) within thirty (30) calendar
days of receipt of this decision or within twenty (20) calendar days of
receipt of another party's timely request for reconsideration. See 29
C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for
29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests
and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. In the absence of a legible postmark, the
request to reconsider shall be deemed timely filed if it is received by
mail within five days of the expiration of the applicable filing period.
See 29 C.F.R. � 1614.604. The request or opposition must also include
proof of service on the other party.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely, unless extenuating circumstances
prevented the timely filing of the request. Any supporting documentation
must be submitted with your request for reconsideration. The Commission
will consider requests for reconsideration filed after the deadline only
in very limited circumstances. See 29 C.F.R. � 1614.604(c).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
You have the right to file a civil action in an appropriate United States
District Court within ninety (90) calendar days from the date that you
receive this decision. If you file a civil action, you must name as
the defendant in the complaint the person who is the official agency head
or department head, identifying that person by his or her full name and
official title. Failure to do so may result in the dismissal of your
case in court. "Agency" or "department" means the national organization,
and not the local office, facility or department in which you work. If you
file a request to reconsider and also file a civil action, filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1199)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request that the Court appoint
an attorney to represent you and that the Court permit you to file the
action without payment of fees, costs, or other security. See Title VII
of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).
The grant or denial of the request is within the sole discretion of
the Court. Filing a request for an attorney does not extend your time
in which to file a civil action. Both the request and the civil action
must be filed within the time limits as stated in the paragraph above
("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
March 30, 2001
__________________
Date