01a46126
12-16-2004
David A. Scott, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
David A. Scott v. United States Postal Service
01A46126
December 16, 2004
.
David A. Scott,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A46126
Agency No. 1C-443-0028-04
DECISION
Complainant appeals to the Commission from the agency's August 11,
2004 decision dismissing his complaint for untimely EEO Counselor
contact and for failure to state a claim. According to the agency's
decision, complainant alleges discrimination on the bases of sex and age
when on October 27, 1997, he was not selected for a T-6 Qualified Bid
Position, and when on March 11, 2004, he became aware that under similar
circumstances and relative to Article 37.3 of the National Agreement,
he had been improperly disqualified for the bid position.
The record indicates that the alleged discriminatory event occurred on
October 27, 1997. Complainant argues that he did not reasonably suspect
discrimination until on or about March 11, 2004, when another employee
was awarded a bid even though her situation was the same as his when he
was disqualified on October 27, 1997. As previous decisions have noted,
a complainant has information sufficient to form a reasonable suspicion
when he becomes aware of his non-selection and could determine who the
selectee was. See, e.g., Farrell v. Social Security Administration,
EEOC Request No. 05940981 (August 3, 1995). We find that complainant
should have reasonably suspected discrimination upon learning of his
non-selection on October 27, 1997, and upon learning who the selectee was
on November 8, 1997. Given that complainant did not initiate contact with
an EEO Counselor until April 8, 2004, he is well beyond the forty-five
(45) day limitation period. Complainant fails to present adequate
justification to warrant an extension of the applicable time limit for
contacting an EEO Counselor. As such, complainant's complaint is properly
dismissed pursuant to 29 C.F.R. � 1614.107(a)(2).
Accordingly, the agency's 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
December 16, 2004
__________________
Date