0120072767
02-18-2010
George M. Robertson, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Capital Metro Area), Agency.
George M. Robertson,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Capital Metro Area),
Agency.
Appeal No. 0120072767
Agency No. 1K231008206
DECISION
Complainant appeals to the Commission from the agency's decision dated
April 23, 2007, finding no discrimination. In his complaint, complainant,
a Full-Time Mail Handler (Elevator Operator) at the Richmond Virginia
Processing and Distribution Center, alleged discrimination in reprisal
for prior EEO activity when: (1) on August 9, 2006, after submitting
his documentation, his supervisor laughed at him and later revealed his
confidential information to his coworkers; and (2) on July 17, 2006,
five days after many requests from him and his shop steward, management
completed the paperwork for his compensation claim.
Initially, we note that complainant also alleged discrimination when on
April 25, 2006, his supervisor denied his leave request. Upon review,
we find that the agency's dismissal of this claim due to untimely EEO
Counselor contact was proper pursuant to 29 C.F.R. �1614.107(a)(2).
Complainant contacted an EEO Counselor with regard to the instant
complaint on September 15, 2006, which was beyond the 45-day time limit
set by the regulations. Despite complainant's contentions on appeal,
this incident was a separate and isolated incident and was sufficiently
distinct enough to trigger the running of the 45-day time limit.
After completion of the investigation of the complaint, complainant did
not request a hearing. The agency thus issued its decision concluding
that it asserted legitimate, nondiscriminatory reasons for its actions,
which complainant failed to rebut.
After a review of the record, the Commission, assuming arguendo that
complainant had established a prima facie case of discrimination, finds
that the agency has articulated legitimate, nondiscriminatory reasons
for the alleged incidents. With regard to claim (1), complainant's
supervisor denied he laughed at him and disclosed his stress claim to
his coworkers as alleged. On appeal, other than his own assertions,
complainant proffers no evidence to support his claim.
With regard to claim (2), the supervisor indicated that he was not
notified of complainant's compensation claim until August 10, 2006,
and that same day he talked to his manager who sent him to the Injury
Compensation Office. The supervisor indicated that he then obtained
a CA-2 form for complainant who filled out his portion. The agency
indicated that the form was signed by the supervisor on August 10, 2006,
and there was nothing in the evidence of record to indicate that the
paperwork was delayed. The agency noted that complainant's claim was
processed by the Department of Labor and was ultimately denied based
upon insufficient evidence that he sustained an injury. The agency
stated that complainant's compensation claim was not denied due to the
alleged delay in processing by management.
Based on the foregoing, we find that complainant failed to provide any
evidence that the articulated reasons were pretextual or that the alleged
incidents were motivated by discrimination. Accordingly, the agency's
decision finding no discrimination is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 77960,
Washington, DC 20013. 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 (S0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
2/18/10
__________________
Date
2
0120072767
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013