01995595
07-28-2000
Richard K. Burke v. United States Postal Service 01995595 July 28, 2000 .Richard K. Burke, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Richard K. Burke v. United States Postal Service
01995595
July 28, 2000
.Richard K. Burke,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01995595
Agency No. 4-B-140-0066-99
DECISION
Upon review, the Commission finds that the complaint was properly
dismissed pursuant to 64 Fed. Reg. 37,644, 37,656 (1999)(to be
codified and hereinafter referred to as EEOC Regulation 29 C.F.R. �
1614.107(a)(2)), for untimely EEO Counselor contact.<1>
The record shows that on February 17, 1999, Complainant sought EEO
counseling, claiming that he had been discriminated against on the
basis of physical disability when he lost his 1977 seniority when he
was reassigned to the Clerk Craft from the Carrier Craft effective
April 6, 1982, while Special Delivery Messengers who changed to Clerk
Craft maintained their seniority when they bid into the Clerk Craft in
February 1999.
The agency issued a final decision dismissing the complaint on the grounds
of untimely EEO Counselor after finding that although Complainant had lost
his seniority in 1982, he did not seek EEO counseling until February 1999,
which is beyond the forty-five (45) day limitation period.
On appeal, Complainant contends that he �went to EEO for a complaint in
this matter back in 1982 [but that he] was told that there was nothing
they [could] do to help [him]�. Complainant further contends that he
was recently informed that all records dating back to 1982 have been
destroyed by the agency. The agency acknowledges that Complainant sought
EEO counseling in 1984, and claims that while said formal complaint was
settled the records have been �purged�. A review of the record persuades
the Commission that the complaint was properly dismissed on the grounds
of untimely EEO Counselor contact. The record shows that by letter dated
February 13, 1984, Complainant was informed that he would �be considered
a Distribution Clerk (unassigned) with a new seniority date of April 6,
1982". Complainant claims for the first time on appeal that he sought
EEO counseling in 1982. We find that Complainant has failed to provide
arguments or evidence to warrant an extension of the time limit for
initiating EEO contact because while he claims he sought EEO counseling
concerning this matter in 1982, the record shows that it was not until
February 13, 1984, that he was informed about his new seniority date.
Moreover, the Commission has consistently held that complainants must
act with due diligence in the pursuit of their claims or the doctrine of
laches may be applied. O'Dell v. Department of Health and Human Services,
EEOC Request No. 05901130 (December 27, 1990). Since February 1984,
Complainant was aware that his seniority date had been adjusted to April
6, 1982. However, he did not seek EEO counseling until 15 years later,
when in February 1999, other employees were allegedly allowed to keep
their seniority when they changed crafts. Based on the foregoing,
we find that Complainant failed to act with due diligence concerning
his seniority. Accordingly, the agency's final decision dismissing
complainant's complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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, Acting Director
Office of Federal Operations
July 28, 2000
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.