01992427
02-12-2002
Sean S. Brown, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Sean S. Brown v. United States Postal Service
01992427
February 12, 2002
.
Sean S. Brown,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01992427
Agency No. 4-H-320-0053-99
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.
The record shows that Complainant sought EEO counseling on November 4,
1998, claiming that he had been discriminated against on the basis
of disability when on September 10, 1998, �he received a notice of
fitness for duty (FFD) alleging that he was medically unsuitable for a
mail processor position.� The record reflects that in a September 23,
1998 letter to the agency's physician, complainant requested �to be
reconsidered for the position of mail processor� and asked the physician
to review an evaluation rendered by complainant's private physician.
Thereafter, complainant further claimed that on November 7, 1998, he
was told that �the Jacksonville Post Office had no one working with a
moderate condition or knee condition�.
On November 30, 1998, complainant filed a formal complaint, alleging
that he was the victim of unlawful employment discrimination on the
basis of disability.
Thereafter, by letter dated December 17, 1998, the agency advised
complainant that �in response to your appeal letter regarding your
medical unsuitability ... the medical officer still finds you medically
unsuitable for the position sought�.
On January 20, 1999, the agency issued a final decision. Therein, the
agency categorized the matter raised in complainant's complaint in the
following fashion:
on September 10, 1998, [complainant] was informed by letter that he was
unsuitable for employment as a mail processor.
The agency dismissed the complaint on the grounds that complainant's
initial EEO contact was untimely, occurring 55 days after the alleged
discriminatory incident.
On appeal, complainant argues that on September 10, 1998, he had not
received official notification concerning his medical unsuitability.
He further contends that the only official notification he received was
�the December 18, 1998 letter.�
By letter dated February 2, 1999, and in response to the final agency
decision of January 20, 1999, complainant informed the agency that he
was not officially notified about his purported unsuitability for the
position until December 18, 1998.
By letter dated February 26, 1999, the agency advised complainant that
the PS Form 2564-A completed during the filing of his initial complaint
reflected that on September 10, 1998, complainant received the fitness
for duty report that found him medically unsuitable for employment.
The letter stated that �the scope of the investigation will remain as
stated in our letter of January 20, 1999.� (emphasis added). The agency
provided appeal rights to complainant, and complainant thereafter filed
an appeal from the agency correspondence of February 26, 1999.
The Commission determines that although the agency makes reference to an
�investigation� in its letter to complainant dated February 26, 1999,
a review of the record reflects that the purpose of the February 26,
1999 correspondence was merely to advise complainant that the agency
considered the date of alleged discrimination as September 10, 1998,
as articulated in its final decision of January 20, 1999.
The Commission finds that the record shows that on September 10, 1998,
complainant was aware that he had been found medically unsuitable for the
position in question, but decided to provide additional documentation
to try to change the medical officer's evaluation. Complainant then
sought EEO counseling on November 4, 1998, claiming discrimination on
the basis of his disability. We find that 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 12, 2002
Date