01A15206_r
02-06-2002
Ralph W. Timberlake, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Ralph W. Timberlake v. United States Postal Service
01A15206
February 6, 2002
.
Ralph W. Timberlake,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A15206
Agency No. 4-H-351-0065-01
DECISION
Upon review, the Commission finds that the complaint was properly
dismissed pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely EEO
Counselor contact.
On April 23, 2001, complainant sought EEO counseling claiming that he
had been discriminated against when in July 2000, he was placed on an
indefinite suspension and as a result, he had not received a paycheck
in ten months; and was not allowed on postal property. Informal efforts
to resolve his concerns were unsuccessful. Subsequently, complainant
filed a formal complaint regarding this issue, that is the subject of
the instant appeal.
The record further shows that on July 1, 2000, complainant had previously
sought EEO counseling on these matters The record does not show that
complainant filed a formal complaint after his pursuit of the EEO process
on July 1, 2000.<1>
The agency issued a final decision dismissing the instant complaint on
the grounds of untimely EEO counselor contact. The agency found that
complainant sought EEO counseling in April 2001, or approximately nine
months after the incidents in question (July 2000).
The record discloses that although complainant was suspended approximately
in June/July 2000, and on June 30, 2000, received a letter from the
agency forbidding his presence on postal property, he did not seek EEO
counseling until April 23, 2001, which is well beyond the 45-day time
limit provided by EEOC Regulations. The record reflects that complainant
previously contacted an EEO Counselor on the matter raised in the instant
complaint in July 2000, in an informal complaint identified as Agency
Case No. 4-H-350-0135-00. However, the Commission has consistently held
that first contact with an EEO Counselor does not count as initial EEO
Counselor contact for timeliness purposes where the complainant seeks
counseling, withdraws and then re-initiates contact on the same matter
months later. Juarez v. Department of the Air Force, EEOC Request
No. 05976151 (June 3, 1998). On appeal, no persuasive arguments or
evidence have been presented to warrant an extension of the time limit
for initiating EEO contact. Accordingly, the agency's final decision
dismissing the complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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
February 6, 2002
Date
1 The EEO Counselor's Report of the instant complaint has identified this
prior informal complaint as Agency Case No. 4-H-350-0135-00. However,
the copy that has been provided to the Commission does not show an agency
case number.