01A33274_r
07-26-2004
Debra H. Bratton, et al., Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Debra H. Bratton, et al. v. United States Postal Service
01A33274
July 26, 2004
.
Debra H. Bratton, et al.,<1>
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A33274
Agency No. 1F-924-0006-03
DECISION
Complainants appeal to the Commission from the agency's April 4, 2003
decision dismissing complainants' complaint for untimely EEO Counselor
contact pursuant to 29 C.F.R. � 1614.107(a)(2), and for failure to state
a claim pursuant to 29 C.F.R. � 1614.107(a)(1).
As way of background, 13 complainants initiated EEO Counselor contact on
January 22, 2002. After the agency failed to issue a notice of right to
file, one complainant filed a complaint on behalf of all 13 complainants.
The agency identified the complaint as Barnes, et al. Barnes subsequently
withdrew his complaint leaving 12 complainants. The agency issued
the April 4, 2003 decision to dispose of the one complaint filed on
behalf of all 12 complainants. In the complaint, complainants alleged
discrimination on the bases of age and retaliation when on December 10,
2001<2>, complainants received an unsatisfactory response from the Plant
Manager regarding the criteria utilized to establish their Fiscal Year
(FY) 2001 merit performance evaluations of �met expectations/objectives.�
The record indicates that complainants contacted an EEO Counselor
on January 22, 2002. The record contains an electronic mail from
complainants' representative dated December 3, 2001, questioning
the �criteria utilized in determining the merit rating of the EAS
employees. . .� We find that complainants should have reasonably
suspected discrimination on December 3, 2001, more than 45 days before
complainants' contact with an EEO Counselor. Complainants have not
presented adequate justification to warrant extension of the applicable
limitation period. Since complainants' complaint is properly dismissed
for untimely EEO Counselor contact, we will not make a determination on
the agency's alternative grounds for dismissal.
The agency's decision dismissing complainants' 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
July 26, 2004
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1Other complainants named are Frank C. Bell, Emmit Collier, Teresa
C. Jackson, Louis E. Earthman, James L. Mock, Cesar Osorio, Horace Porch
III, John E. Rowan, Jr., Jimmy L. Sterling, Paul R. Wheeler, and Warren
K. White.
2Although the agency indicates that the action occurred on December 10,
2002, it is clear from the record that the year was 2001 and not 2002.