01A61515
07-19-2006
Michael B. Davis, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Michael B. Davis,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A61515
Agency No. 4G760001206
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated December 7, 2005, 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., Section 501 of
the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C.
� 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq.
Complainant was employed as a Carrier Technician at an agency facility in
Ft. Worth, Texas. On October 28, 2005, complainant initiated contact with
an EEO Counselor, alleging that he was subjected to discrimination on the
bases of religion (Pastor), disability (disabled veteran), and age (D.O.B.
08/09/55) when: (1) on April 12, 2005, he was placed in off-duty, non-pay
status and (2) he was issued a Notice of Proposed Removal dated August 10,
2005 and Letter of Decision dated September 16, 2005 which effectuated his
removal on September 19, 2005. In a formal complaint filed on December 2,
2005, complainant alleged that the agency discriminated against him based
on religion, disability and age when it accused him of stealing, slandered
his name, and stated that he should be fired.
The agency dismissed Claim 1 for untimely EEO contact. The agency
explained that complainant did not contact a Counselor until 154 days
beyond the time limitation period. Additionally, the agency dismissed
Claim 2 as an abandoned issue. The agency explained that complainant
abandoned issues cited at the counseling stage when he failed to raise them
in the formal complaint.
Regarding Claim 1, where, as here, there is an issue of timeliness, "[a]n
agency always bears the burden of obtaining sufficient information to
support a reasoned determination as to timeliness." Guy, v. Department of
Energy, EEOC Request No. 05930703 (January 4, 1994) (quoting Williams v.
Department of Defense, EEOC Request No. 05920506 (August 25, 1992)).
Moreover, 29 C.F.R. � 1614.105(1) states that an aggrieved person must
initiate contact with a Counselor within 45 days of the date of the matter
alleged to be discriminatory.
The record discloses that complainant was placed on off-duty, non-pay
status on April 12, 2005. The record further reveals that complainant did
not initiate EEO contact regarding this matter until October 28, 2005, 154
days beyond the time limitation period. Therefore, upon review, the
Commission finds that the agency properly dismissed Claim 1 for untimely
EEO contact.
Further, we agree with the agency's decision to dismiss Claim 2 on the
ground that complainant raised the claim with an EEO Counselor in his pre-
complaint, but did not do so in his formal complaint. This Commission has
held that, "a complainant who receives counseling on an allegation, but
does not go forward with a formal complaint on that allegation is deemed to
have abandoned it, and consequently, cannot raise it in another complaint."
See Small v. United States Postal Service, EEOC Request No. 05980289 (July
16, 1999).
Accordingly, the agency's final decision dismissing Claim 1 for failure to
state a claim and Claim 2 on the ground that the allegation raised was
abandoned 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, 2006
__________________
Date