01a22615_r
01-28-2003
Edward Johnson, III, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Edward Johnson, III v. United States Postal Service
01A22615
January 28, 2003
.
Edward Johnson, III,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A22615
Agency No. 4E-800-0269-01
DECISION
Upon review, the Commission finds that the agency's decision dated March
11, 2002, dismissing complainant's complaint for failure to state a
claim and/or due to untimely EEO Counselor contact is proper pursuant
to 29 C.F.R. �� 1614.107(a)(1) and (2). In his complaint, complainant
alleged discrimination based on race/color (Black) when:
On January 30, 2001, he felt pressured to case and carry his route while
on medication;
He was denied Leave Without Pay (LWOP) on December 15, 2000;
On November 2, 2000, he was given an official discussion for clocking
in and then moving his personal vehicle on the clock;
On October 14, 2000, he felt threatened by a supervisor when he was told
he would be written up if he did not follow a direct order to carry one
hour on Route 202; and,
On August 7, 2000, another supervisor made the comment, �You could hitch
a ride to work, but being Black, no one would probably pick you up.�
With regard to claim (1), complainant indicated that after his being off
work from January 24 through 29, 2001, due to his headaches, he called his
supervisor at 6:30 a.m. on January 30, 2001. Complainant, then, asked the
supervisor if he needed complainant to come in to work and the supervisor
told him to come in to work. Complainant, then, came in to work and when
the supervisor asked him if he could carry route 206, complainant told him
he could; but, later on that day, he passed out. After a review of the
record, the Commission finds that although complainant maintained that
he was pressured into coming in to work and carry the route on the date
of the incident, he failed to provide any evidence to substantiate his
contentions. Complainant clearly called his supervisor and when he was
asked to carry his route, he did not object to such, rather he expressed
he was able and his willingness to do his work. There is no indication
that complainant expressly informed his supervisor that he was under
medications and he was not able to perform his work on the date of the
alleged incident. Although complainant indicated that he feared that he
might be disciplined if he did not come in to work and carry the route,
such belief, in itself, is speculative without any concrete action on
the part of the agency. Thus, the Commission finds that complainant
was not aggrieved with regard to claim (1) and it failed to state a claim.
With regard to claims (2) through (5), complainant contacted an EEO
Counselor on March 5, 2001. Since the alleged incidents occurred on
or prior to December 15, 2000, the Commission finds that complainant's
EEO Counselor was beyond the 45-day time limit set by the regulations.
On appeal, complainant fails to submit adequate justification to warrant
an extension of the applicable time limit for contacting an EEO Counselor.
Accordingly, the agency's decision is hereby 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
January 28, 2003
__________________
Date