01A32248_r
08-07-2003
Sydney G. Robinson, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Sydney G. Robinson v. United States Postal Service
01A32248
August 7, 2003
.
Sydney G. Robinson,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A32248
Agency No. 4-J-606-0124-02
DECISION
Upon review, the Commission finds that complainant's complaint was
properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely
EEO Counselor contact. In his complaint, complainant alleged that
he was subjected to discrimination on the basis of disability (left
knee injury, gout, gluteal Pilondial Cyst) when, on March 22, 2002, he
learned that a rehabilitation assignment should have been offered to him.
Complainant argued that management has denied him the right to make a
living by not offering him a modified carrier position.
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires complaints of
discrimination to be brought to the attention of the EEO Counselor within
forty-five (45) days of the date of the claimed discriminatory matter,
or, in the case of a personnel action, within forty-five (45) days of
the effective date of the action. The Commission's regulations, however,
provide that the time limit will be extended when the complainant shows
that he or she was not notified of the time limits and was not otherwise
aware of them, that he or she did not know and reasonably should not
have known that the discriminatory matter or personnel action occurred,
that despite due diligence he or she was prevented by circumstances
beyond his or her control from contacting the counselor within the time
limits, or for other reasons considered sufficient by the agency or the
Commission. See 29 C.F.R. � 1614.105(a)(2).
The record discloses that complainant was offered a Limited Duty Letter
Carrier position on June 19, 2001. Complainant refused the position
indicating that it did not have a starting time and pay location.
The offer was corrected two times and resubmitted on June 20, 2001, and
June 28, 2001, which complainant declined. Complainant was notified by
the agency's District Office that the limited duty position remained open.
An additional 15 days was allowed for complainant to return to work.
Complainant did not return to work and on August 17, 2001, the District
Office advised complainant that wage benefits were being terminated.
On appeal, complainant states that, on March 22, 2002, he learned that
a rehabilitation assignment should have been offered to him. However,
the record reveals that complainant disagreed with the termination
and appealed to the U.S. Department of Labor Office of Workers'
Compensation Programs (OWCP). Complainant was afforded a hearing before
an OWCP representative on March 21, 2002. OWCP stated that complainant
acknowledged that the job offer made was within his limitations, however,
he preferred to attempt to perform his route duties. OWCP indicated
that complainant failed to provide acceptable reasons for refusing the
job offer made by the agency. Complainant thereafter initiated contact
with an EEO Counselor on April 22, 2002.
The Commission finds that complainant should have reasonably suspected
discrimination by June 19, 2001 and subsequent appeal to OWCP for
termination of wage benefits. Complainant did not initiate contact with
an EEO Counselor until April 22, 2002, which is beyond the forty-five
(45) day limitation period. On appeal, complainant has presented no
persuasive arguments or evidence warranting an extension of the time
limit for initiating EEO Counselor contact.
Accordingly, the agency's final decision dismissing complainant's
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
August 7, 2003
__________________
Date