01A00636
03-21-2001
Richard N. Joy, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Richard N. Joy v. United States Postal Service
01A00636
March 21, 2001
.
Richard N. Joy,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A00636
Agency No. 1-C-191-0063-98
DECISION
On November 3, 1999, complainant timely initiated an appeal from a August
24,1999 final agency decision (FAD) concerning the partial dismissal of
the claims in his complaint for untimely counselor contact. The agency
dismissed allegations 1 - 11, a portion of claim 12 and claim 13 on the
grounds that he did not contact an EEO Counselor on these claims until
December 9, 1997, beyond the 45-day time limit. The agency accepted
for investigation a portion of claim 12, and claims 14 - 18.
On appeal, complainant claims that he was not aware of the discrimination
until December 5, 1997, during a telephone conversation with his former
APWU shop steward and he timely contacted the Counselor on December
9, 1997.
The regulation set forth at 29 C.F.R. � 1614.107(b) provides that where
an agency decides that some but not all of the claims in a complaint
should be dismissed, the agency shall notify the complainant of its
determination; however, this determination is not appealable until
final action is taken on the remainder of the complaint. Based on
recent correspondence from the agency, it appears that the accepted
claims were the subject of a final agency decision on April 14, 2000,
rendering the claims pending herein the only viable matter.<1> Therefore,
the Commission shall issue a decision on the remaining claims in the
complaint.
Upon review, the Commission finds that the claims at issue in the instant
appeal were properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(2),
for untimely EEO Counselor contact. The claims encompass a variety of
alleged discriminatory incidents that include among other matters: change
in starting time; overtime denial; issuance of an excessed assignment;
and required to work a holiday. The Commission determines that all the
dismissed claims occurred more than forty-five days prior to complainant's
initial EEO Counselor contact. 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 claims 1- 11, a portion of claim 12 and claim 13, 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 21, 2001
__________________
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
______________________________
1 In its final decision of April 14, 2000, the agency found no
discrimination regarding the claims that had been previously accepted
for investigation. There is no evidence that complainant filed an appeal
with the Commission from the agency's April 14, 2000 decision.