01a53279
07-19-2005
Joseph A. Franklin, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Joseph A. Franklin v. United States Postal Service
01A53279
July 19, 2005
.
Joseph A. Franklin,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A53279
Agency No. 1K-201-0062-04
DECISION
Upon review, the Commission finds that complainant's complaint was
properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(2), due to the
untimely filing of the formal complaint. In his complaint, complainant
alleged that he was subjected to discrimination on the bases of disability
and reprisal for prior EEO activity when:
(1) From January 27, 2004 to March 9, 2004, complainant was charged
Absent Without Leave (AWOL);
(2) On June 18, 2004 and July 21, 2004, complainant's request for
Light Duty work was denied;
(3) On September 24, 2004, complainant became aware that his pay check
for Pay Period 20 -was missing16 hours of pay;
(4) On October 8, 2004, complainant became aware that his pay check
for Pay Period 21 was missing 16 or 24 hours of pay;
(5) On October 27, 2004, complainant's request to be assigned outside
of S1's area of supervision was denied;
(6) On October 27, 2004, complainant's request for a shop steward
was denied;
(7) On October 27, 2004, complainant was taken off the clock;
(8) On December 25, 2004, January 1, 2005, and January 17, 2005,
complainant was not paid for working on the holiday;
(9) On unspecified date(s), S1 denied complainant's request for leave
under the Family and Medical Leave Act (FMLA);
(10) On unspecified date(s), complainant was assigned to the west dock;
(11) On unspecified date(s), complainant was placed in a non-paid status;
(12) On unspecified date(s), S1 requested that complainant undergo a
psychological evaluation;
(13) On unspecified date(s), S1threatened and intimidated complainant;
and
On unspecified date(s), S1 retrieved confidential records concerning
complainant's health problems.
The record discloses that the agency mailed the notice of right to file
a formal complaint to complainant on January 13, 2005, with the express
provision that delivery of the notice would be presumed to have occurred
within 5 days of when it was mailed. Although the notice indicated that
complainant had to file a formal complaint within fifteen (15) calendar
days of its receipt, complainant did not file his formal complaint until
February 17, 2005, which is beyond the limitation period. On appeal,
we find that complainant has not offered adequate justification to
warrant an extension of the time limit for filing the complaint.
Accordingly, the agency's final decision dismissing complainant's
complaint pursuant to 29 C.F.R. � 1614.107(a)(2) 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 19, 2005
__________________
Date