Kelvin Ford, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionApr 15, 1999
01983599 (E.E.O.C. Apr. 15, 1999)

01983599

04-15-1999

Kelvin Ford, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Kelvin Ford v. United States Postal Service

01983599

April 15, 1999

Kelvin Ford, )

Appellant, )

)

v. ) Appeal No. 01983599

) Agency No. 1-I-531-0061-98

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

)

DECISION

The Commission finds that the agency's March 11, 1998 decision dismissing

appellant's complaint on the grounds of untimely EEO counselor

contact, is proper pursuant to the provisions of EEOC Regulation 29

C.F.R. �1614.107(b).

The record shows that by letter dated May 16, 1997, the agency removed

appellant from his position effective May 30, 1997. By letter dated

October 10, 1997, appellant was advised that his request for reinstatement

had been denied. On December 17, 1997, appellant sought EEO counseling

alleging that he had been discriminated against on the bases of race

(Black), sex (male) and physical disability (Diabetes and service

connected disability) when on December 17, 1997, he became aware that

he had been discriminated against concerning his request for re-hiring.

On February 4, 1998, appellant filed his formal complaint.

The record contains an EEO Investigative Affidavit executed by the

Postmaster which states in relevant part that he has worked at the

facility in question since 1992, and that during that time "EEO posters

were prominently displayed throughout" the area. A copy of the EEO poster

in the record identifies the 45 day time limit for counselor contact.

The agency issued a final decision dismissing the complaint on the

grounds of untimely EEO counselor contact after finding that appellant

should have contacted an EEO counselor no later than November 23, 1997.

The agency further found that EEO posters with the applicable time limits

were on display at the facility where appellant worked. On appeal,

appellant contends that he was not aware of the EEO process because he

was not working at the facility. He further contends that he was unaware

of what constitutes disability discrimination until he spoke to a person

who represents employees in the EEO process.

We have reviewed the record and it shows that EEO posters with the

applicable time limits were posted at the facility where appellant worked.

The record also shows that appellant worked at said facility until

his removal effective May 30, 1997. By letter dated October 17, 1997,

appellant was advised that his reinstatement request had been denied.

Finally, the record shows that appellant sought EEO counseling on December

17, 1997.

The Commission has held that where there is an issue of timeliness, the

agency always bears the burden of obtaining sufficient information to

support a reasoned determination as to timeliness. Williams v. Department

of Defense, EEOC Request No. 05920506 (August 25, 1992). Concerning

appellant's complaint, the agency has met its burden. The record evidence

is sufficient to find that appellant had constructive knowledge of the

45-day time limit and of his rights under EEOC Regulations. Yashuk

v. USPS, EEOC Request No. 05890382 (June 2, 1989). Therefore, appellant

should have sought EEO counseling within 45 days of being informed on

October 17, 1997, that his reinstatement request had been denied.

Accordingly, the agency's decision dismissing the complaint on the basis

of untimely EEO counselor contact is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0795)

The Commission may, in its discretion, reconsider the decision in this

case if the appellant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. New and material evidence is available that was not readily available

when the previous decision was issued; or

2. The previous decision involved an erroneous interpretation of law,

regulation or material fact, or misapplication of established policy; or

3. The decision is of such exceptional nature as to have substantial

precedential implications.

Requests to reconsider, with supporting arguments or evidence, MUST

BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this

decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive

a timely request to reconsider filed by another party. Any argument in

opposition to the request to reconsider or cross request to reconsider

MUST be submitted to the Commission and to the requesting party

WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request

to reconsider. See 29 C.F.R. �1614.407. All requests and arguments

must bear proof of postmark and 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 filed on the date it is received

by the Commission.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely. If extenuating circumstances

have prevented the timely filing of a request for reconsideration,

a written statement setting forth the circumstances which caused the

delay and 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. �l6l4.604(c).

RIGHT TO FILE A CIVIL ACTION (S0993)

It is the position of the Commission that 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.

You should be aware, however, that courts in some jurisdictions have

interpreted the Civil Rights Act of 1991 in a manner suggesting that

a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the

date that you receive this decision. To ensure that your civil action

is considered timely, you are advised to file it WITHIN THIRTY (30)

CALENDAR DAYS from the date that you receive this decision or consult

an attorney concerning the applicable time period in the jurisdiction

in which your action would be filed. 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 (Z1092)

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:

April 15, 1999

DATE Ronnie Blumenthal, Director

Office of Federal Operations