Larry D. McKoy, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionJun 12, 2003
01A31459_r (E.E.O.C. Jun. 12, 2003)

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