01996522
03-02-2001
Ralph Messer, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Ralph Messer v. USPS
01996522
March 2, 2001
.
Ralph Messer,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01996522
Agency No. 4J-480-0111-97
DECISION
Upon review, the Commission finds that complainant's complaint was
properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely
EEO Counselor contact. The record discloses that the complainant was
notified of his non-selection to a postmaster vacancy on October 26 1996,
but that complainant waited until February 2, 1997, to initiate contact
with an EEO Counselor, beyond the forty-five (45) day limitation period.
On appeal, no persuasive arguments or evidence have been presented to
warrant an extension of the time limit for initiating EEO contact.
Complainant acknowledges that he was notified on October 26, 1996, of
the non-selection in a letter from an agency Postmaster dated October
21, 1996. However, complainant contends that the effective date of
measuring timely Counselor contact should begin on December 21, 1996, when
he received a subsequent correspondence from the Postmaster on the matter.
We reject complainant's argument. The record reflects that complainant
admits that he was both �stunned and surprised� when he received the
initial letter on October 26, 1996, and thought the letter was an
error. Further, the complainant admits in a letter to the Postmaster
dated November 11, 1996, that he had some �fundamental and troubling
concerns about� the selection process.
The 45-day limitation period for initiating EEO Counselor contact
is triggered by having facts that should lead a complainant to have
�reasonable suspicion� that unlawful discrimination has occurred. Reeb
v. Economic Opportunity of Atlanta, Inc. 516 F. 2d 924, 931 (5th
Cir. 1975). Moreover, we have held that waiting until one has supporting
facts or proof of discrimination before initiating a complaint can
result in untimely counselor contact. Bracken v. U.S. Postal Service,
EEOC Request No. 05900065 (March 29, 1990). Accordingly, the agency's
final decision dismissing complainant's 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 2, 2001
__________________
Date