01A34150
06-16-2004
Joseph L. Perry, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southwest Area), Agency.
Joseph L. Perry v. United States Postal Service
01A34150
June 16, 2004
.
Joseph L. Perry,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southwest Area),
Agency.
Appeal No. 01A34150
Agency No. 4G-720-0010-00
Hearing No. 250-A0-8453X
DECISION
Complainant timely initiated an appeal from the agency's final decision
concerning his equal employment opportunity (EEO) complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. and the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �
621 et seq. The appeal is accepted pursuant to 29 C.F.R. � 1614.405.
For the following reasons, the Commission affirms the agency's final
decision.
The record reveals that complainant filed a formal EEO complaint on
January 25, 2000, alleging that the agency discriminated against him on
the bases of race (Black), sex (male), color (black), age (age 48), and
reprisal for prior EEO activity when complainant was denied employment as
a Rural Carrier Associate at the Marianna, Arkansas Post Office in August
1999, while another person was hired who was not on the register.<1>
At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). The AJ dismissed complainant's complaint for failing to
request a hearing within 30 days of receiving the notice of his right to
request a hearing. According to the AJ, on July 25, 2000, complainant
signed a receipt indicating that he received the notice, and on August 28,
2000, 33 days after receipt of the notice, he signed the form requesting
a hearing and returned it to the Commission. Although in response to
the AJ's Order to Show Cause, complainant argued that due to misconduct
of agency employees, complainant did not receive his mail during the
months of June, July, and August 2000, the AJ found such explanation
to be not credible, since the 30 days began to run on July 25, 2000,
the date on which complainant signed PS Form 3811, acknowledging that he
received the notice. Therefore, the AJ dismissed complainant's hearing
request. The agency's final decision implemented the AJ's dismissal
of complainant's hearing request. The agency processed the remanded
claim, and issued a finding of no discrimination. The agency found that
complainant failed to establish a prima facie case of discrimination
and that he was not subjected to an adverse employment action.
On appeal, complainant argues that he is entitled to a hearing because
the Hearings Unit assumed jurisdiction when it ordered complainant
to participate in a settlement conference after it issued him an
Order to Show Cause as to why he failed to timely request a hearing.
He contends that this settlement conference resulted in retaliation on
the part of the agency. He further alleges that he has raised prior
non-selections as part of a continuing violation claim and that he
has filed two motions to amend his complaint, in August 2000, and on
January 15, 2001, regarding events arising after he filed his complaint.
He also reiterates that he did not receive his mail during June, July,
and August 2000, due to the misconduct of agency employees, and that
he never received the call-in notice regarding his interview for the
position.<2> The agency requests that we affirm its final decision.
The Commission notes that in a letter to the Chief AJ, dated November 10,
2000, complainant admits to not requesting a hearing in a timely manner
due to miscalculation of the date. We find this to be an inadequate
explanation to justify tolling the limitation period for a hearing
request. We further note that the AJ issued his dismissal after the
settlement conference occurred, and that there is no indication in the
record that such settlement conference was prejudicial to complainant's
case. Therefore, we find that the AJ properly exercised his discretion
in dismissing complainant's hearing request. This case was properly
remanded to the agency for issuance of a final decision. Moreover, on May
11, 2000, the agency issued complainant a notice informing him that the
scope of the agency's investigation would encompass the claim that he was
denied employment at the Marianna, Arkansas Post Office in August 1999.
Complainant was informed that if he disagreed with the defined issue,
he must provide the agency with sufficient reasons to substantiate his
objections, in writing, within seven (7) calendar days of receipt of that
letter. There is no indication in the record that complainant objected to
the accepted issue within the allotted time frame. Moreover, we find that
there is no indication that the AJ granted complainant's motion to amend
the complaint; therefore, these claims, which are discrete acts regarding
prior non-selections, need not be considered on appeal, although they
are considered as background evidence. Furthermore, should complainant
want to further pursue his claim that he was retaliated against following
the settlement conference, he should contact an EEO Counselor regarding
his claim. The Commission will not accept a new claim raised on appeal.
Moving to the merits of the complaint, although the Commission finds
that complainant has stated a claim raising an adverse employment action,
i.e., failure to be selected for the position of Rural Carrier Associate,
we find that complainant has failed to establish that his non-selection
was motivated by discrimination by a preponderance of the evidence.
The agency articulated a legitimate, non-discriminatory reason for its
failure to hire complainant, that being his failure to respond to the
call-in notice so as to be interviewed for the position. Complainant has
failed to rebut the agency's explanation for his non-selection and has
failed to show that his non-selection was motivated by discriminatory
or retaliatory animus.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the Equal
Employment Opportunity Commission to affirm the agency's final decision
because the preponderance of the evidence of record does not establish
that discrimination occurred.
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
June 16, 2004
__________________
Date
1The record does not indicate the statutes
under which complainant's prior EEO activity arose; however, the agency
does not dispute that complainant engaged in prior EEO activity.
2The Commission notes that complainant filed a civil action regarding
the alleged non-delivery of mail in the United States District Court
for the Eastern District of Arkansas. Therefore, any claim regarding
non-delivery of mail on these dates is dismissed pursuant to 29 C.F.R. �
1614.107(a)(3), for raising a claim that has already been raised in
U.S. District Court.