01A13788
03-04-2003
Rudolph Ellis, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Western Area) Agency.
Rudolph Ellis v. United States Postal Service
01A13788
March 4, 2003
.
Rudolph Ellis,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Western Area)
Agency.
Appeal No. 01A13788
Agency No. 1-I-551-0003-01
DECISION
Complainant initiated an appeal from the agency's Final Agency Decision
(FAD) concerning his complaint of unlawful employment discrimination
based on his physical disability (leg injuries) in violation of Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq. The FAD dismissed the complaint pursuant to 29
C.F.R. � 1614.107(a)(2), for untimely EEO Counselor contact. In his
complaint, complainant alleged that he was subject to discrimination
on the basis of disability (leg injuries), when he was not re-appointed
to his position as a casual clerk at the agency's St. Paul, Minnesota,
facility. Complainant claims that he failed to timely contact the EEO
counselor because he initially contacted the State Equal Rights Office
and was given incorrect information for filing an EEO complaint.
The record discloses that the alleged discriminatory event occurred on
April 13, 2000, but complainant did not initiate contact with an EEO
Counselor until October 23, 2000. Generally, an aggrieved person must
initiate contact with a Counselor within 45 days of alleged discriminatory
conduct or within 45 days of the effect date of a personnel action.
29 C.F.R. � 1614.105(a)(1). Complainant's contact with the EEO Counselor
was far beyond this forty-five (45) day period. In order to obtain
an extension, complainant must show that he was not notified of the
time limits and was not otherwise aware of them, that he did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence he was prevented by
circumstances beyond his control from contacting the counselor within the
time limits, or for other reasons considered sufficient by the agency or
the Commission. 29 C.F.R. � 1614.105(a)(2). On appeal, complainant has
presented no persuasive arguments or evidence warranting an extension of
the time limit for initiating EEO Counselor contact. Additionally, we
note that the record contains a copy of the EEO posting dated December
1993, and therefore we find that complainant reasonably should have
known to contact the EEO Counselor and the time limits within which make
that 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
March 4, 2003
__________________
Date