0120110204
02-17-2011
Richard K. Lange, JR, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Southwest Area), Agency.
Richard K. Lange, JR,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Southwest Area),
Agency.
Appeal No. 0120110204
Agency No. 4G-700-0103-10
DECISION
Upon review, the Commission finds that the Agency's decision dated
September 13, 2010, dismissing Complainant's complaint due to untimely
EEO Counselor contact is proper pursuant to 29 C.F.R. � 1614.107(a)(2).
The Agency's decision dismissing the complaint is AFFIRMED.
BACKGROUND
In his complaint, dated August 28, 2010, Complainant, a Rural Carrier,
at the Agency's Slidell Main Post Office, in Slidell, Los Angeles,
alleged discrimination based on disability when he was passed over three
times for receiving a Long-Life Vehicle (LLV) for his route. Complainant
indicated in his complaint that the alleged incidents occurred from 2005/6
through 2007 on several occasions. Complainant also indicated that the
alleged denial of LLV initially occurred on August 6, 2006. EEO Dispute
Resolution Specialist's (DRS) Inquiry Report, p. 1. Complainant contacted
an EEO Counselor with regard to his complaint on May 24, 2010. Id.
Complainant indicated that after years of the alleged denial of the LLV,
more LLV became available and he was now driving the LLV.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of
discrimination be brought to the attention of the EEO Counselor within
45 days of the alleged discriminatory event, or the effective date of
an alleged discriminatory personnel action.
Complainant clearly indicated that the alleged incidents occurred from
August 6, 2006, to 2007. Upon review, we find that Complainant's EEO
Counselor contact regarding his complaint on May 24, 2010, was beyond
the 45-day time limit set by the regulations. Despite Complainant's
contention that he did not know about the requisite time limit, the
Agency provides in the record that he had a constructive knowledge of the
time limit. Thompson v. Department of the Army, EEOC Request 05910474
(September 12, 1991). Based on the foregoing, we find that Complainant
fails to present adequate justification to warrant an extension of the
applicable time limit for contacting an EEO Counselor.
Accordingly, the Agency's final decision is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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
77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
2/17/11
__________________
Date
2
0120110204
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013