01A31459_r
06-12-2003
Larry D. McKoy, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Larry D. McKoy v. United States Postal Service
01A31459
June 12, 2003
.
Larry D. McKoy,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A31459
Agency No. 4-C-280-0133-02
DECISION
Complainant filed a timely appeal with this Commission from an agency
decision dated November 20, 2002, dismissing his 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. In his
complaint, complainant alleged that he was subjected to discrimination
on the bases of race (African-American) and in reprisal for prior EEO
activity when:
On May 22, 2002, complainant was disallowed comfort time totally during
a special route inspection.
We note that originally, complainant identified two issues in his
formal complaint. In the second issue complainant alleged that he was
discriminated against when on May 22, 2002, he was issued a verbal warning
not to take a personal needs stop at 1764 Ireland Drive on his route.
The agency issued a September 3, 2002 decision partially dismissing issue
(2) for failure to state a claim and accepting the above identified
issue for investigation.
The agency issued a subsequent decision on November 20, 2002,
dismissing complainant's complaint pursuant to the regulation set forth
at 29 C.F.R. � 1614.107(a)(2), for untimely EEO Counselor contact.
The agency stated that the records show that the most recent inspection
of complainant's route was conducted January 12-18, 2002. The agency
claimed that the disallowed time complained about occurred during
the January route inspection. The agency noted that complainant did
not contact an EEO Counselor until May 23, 2002, which was beyond the
applicable limitations period.
On appeal, complainant claims that management has 52 days after
a route inspection has been completed to issue data for the route.
Complainant states that if management does not act on the information,
it is not valid. He claims that it was not until May 22, 2002, that
management imposed some of the results from the route inspection.
Upon review, we find that in viewing complainant's complaint as one
claim that he was denied comfort time during a special route inspection
and was issued a verbal warning not to take a personal needs stop at
1764 Ireland Drive on his route, the present complaint fails to state
a cognizable claim. We find that complainant has failed to identify a
harm or loss to a term, condition, or privilege of employment for which
there is a remedy.
Accordingly, the agency's final decision dismissing complainant's
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
June 12, 2003
__________________
Date