01984655
06-23-1999
Paresh M. Parikh, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Paresh M. Parikh v. United States Postal Service
01984655
June 23, 1999
Paresh M. Parikh, )
Appellant, )
)
v. ) Appeal No. 01984655
) Agency No. 4A-070-0059-98
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
On May 15, 1998, appellant filed a timely appeal of an April 15, 1998
final agency decision which dismissed his March 20, 1998 complaint for
failure to contact an EEO Counselor in a timely manner.
Appellant alleged that he was discriminated against on the bases of
race (Indian), religion (Hindu), sex (male), color (not specified), and
national origin (India). The dismissed allegation is identified in the
final agency decision as whether appellant was discriminated against when
sometime in October 1997, his request for a transfer to the Hackettstown
Post Office was denied due to his low sick leave balance.
Generally, an aggrieved person must initiate contact with an EEO Counselor
within 45 days of the date of the matter alleged to be discriminatory.
See 29 C.F.R. �1614.105(a)(1). The limitation period is not triggered
until a complainant should reasonably suspect discrimination, but before
all the facts that would support a charge of discrimination have become
apparent. Ball v. U.S. Postal Service, EEOC Request No. 05880247 (July 6,
1988).
Upon review, the Commission agrees with the agency that appellant's
EEO contact was untimely. The Counselor's Report reveals that sometime
in October 1997, appellant was advised by the Hackettstown Postmaster
that his request for a transfer to that office was denied due to his
sick leave balance. The Counselor's Report also reveals that appellant
initiated EEO contact on December 29, 1997. Appellant does not dispute
the date of his EEO contact nor does he argue that he was unaware of
the time limits. Therefore, appellant's contact was beyond the 45 days
required for timely contact.
Letters contained in the record reveal that on at least four occasions
from 1990 to 1997, appellant requested to be transferred to the
Hackettstown Post Office from the Kearny Post Office where he worked but
his requests were never granted. In addition, in a statement contained
in the Counselor's Report, appellant stated that while employed at the
Kearny Post Office, he had seen numerous employees obtain transfers.
He also stated that he felt that he was passed over for other valuable
job opportunities for discriminatory reasons. Appellant therefore had a
reasonable suspicion of discrimination, at the latest, by October 1997.
Finally, although the record reflects that appellant wrote without
success to the Hackettstown Postmaster in December 1997 and January
1998 for a written explanation as to why he was not granted a transfer,
this circumstance does not serve to extend the limitation period since
appellant already had a reasonable suspicion of discrimination. When a
complainant has some reason to support the belief that prohibited
discrimination has occurred, contact with a Counselor must occur.
Waiting until one has proof of discrimination before initiating a
complaint can result in untimely contact. See Bracken v. U.S. Postal
Service, EEOC Request No. 05900065 (March 29, 1990).
Consistent with our discussion herein, the agency's final decision 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. �1614.604(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 to 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:
June 23, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations