01983841
06-29-1999
Stephen E. McDermott, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Stephen E. McDermott v. United States Postal Service
01983841
June 29, 1999
Stephen E. McDermott, )
Appellant, )
) Appeal No. 01983841
v. ) Agency No. 4B-020-0034-98
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
INTRODUCTION
Appellant filed an appeal with this Commission from a final agency
decision (FAD) concerning his complaint of unlawful employment
discrimination in violation of Title VII of the Civil Rights Act of
1964, as amended, 42 U.S.C. �2000e et seq. The FAD was dated March 9,
1998, and was received by appellant on March 17, 1998. The appeal was
postmarked on April 13, 1998. The appeal is accepted in accordance with
EEOC Order No. 960.001, as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed appellant's
complaint for untimely EEO Counselor contact.
BACKGROUND
In his formal complaint, dated February 20, 1998, appellant alleged
discrimination on the basis of race (White) because: (1) he was placed on
Emergency Off-Duty Status With Pay on December 19, 1996; and (2) he was
issued a letter of warning, on March 19, 1997, in lieu of a suspension,
for violating United States Postal Service standards of ethical conduct.
According to the EEO Counselor's Report, appellant initially contacted
his EEO Office on October 24, 1997.
In the FAD, the agency dismissed appellant's complaint for untimely
EEO Counselor contact because appellant had contacted an EEO Counselor
on October 24, 1997, more than 45 days after the December 19, 1996 and
March 19, 1997 incidents. This appeal followed.
In his statement on appeal, appellant asserted that he initially contacted
an EEO Counselor on February 7, 1997 and that the agency never posted
EEO materials to notify him of the 45-day time limit for contacting an
EEO Counselor.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.105(a)(1) provides that an aggrieved
person must initiate contact with an EEO Counselor within 45 days of
the date of the matter alleged to be discriminatory or within 45 days
of the effective date of the personnel action. EEOC Regulation 29
C.F.R. �1614.105(a)(2) allows the agency or the Commission to extend the
time limit if the appellant can establish that (s)he was not aware of
the time limit, that (s)he did not know and reasonably should not have
known that the discriminatory matter or personnel action occurred, that
despite due diligence, (s)he was prevented by circumstances beyond his
or her control from contacting the EEO Counselor within the time limit,
or for other reasons considered sufficient by the agency or Commission.
We agree with the agency that appellant's EEO Counselor contact was
untimely with regard to both the December, 1996 and March, 1997 incidents.
Even if appellant first contacted an EEO Counselor on February 7,
1997, as he stated, this contact was still more than 45 days after he
was placed on Emergency Off-Duty Status on December 19, 1996 and was,
therefore, untimely with regard to that incident. Also, the first time
that appellant contacted an EEO Counselor, after he was issued a letter of
warning on March 19, 1997, was October 24, 1997. This Counselor contact
was more than 45 days after the March, 1997 incident, and therefore was
also untimely.
Appellant's contention that he did not know of the 45-day time frame when
the December and March incidents occurred is unpersuasive. The record
reveals that, on June 20, 1995, appellant received EEO Training because
he attended a course which was taught by an EEO Counselor. The record
also contains a listing of participants in the course. The list includes
appellant's name and his signature. During the course, participants
were made aware of the regulatory time frames for Counselor contact.
The Commission finds, therefore, that appellant was aware of the time
limit when both incidents occurred.
CONCLUSION
Accordingly, the decision of the agency was proper and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
June 29, 1999
______________ ______________________________
DATE Carlton Hadden, Acting Director
Office of Federal Operations