01a52257
05-13-2005
Rodney J. McGautha, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Rodney J. McGautha v. United States Postal Service
01A52257
05-13-05
.
Rodney J. McGautha,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A52257
Agency No. 1E-642-0007-04
DECISION
Upon review, the Commission finds that complainant's complaint was
properly dismissed pursuant to 29 C.F.R. � 1614.105(a)(1) and 107(a)(1)
for untimely EEO Counselor contact and for failure to state a claim.
In a complaint dated September 23, 2004, complainant alleged that he was
subjected to discrimination on the bases of race (African-American), sex
(male), religion (Christian), age (D.O.B. 12/22/56), and reprisal for
prior EEO activity, (1) when on June 29, 2004, he was purportedly given
a 14-day suspension, issued on May 15, 2004; (2) on June 4, 2004, his
supervisor violated his privacy rights when she took him to the hospital
and attempted to stay in the emergency room; (3) and on an unspecified
date in June 2004, he received 24 hours of Leave Without Pay (LWOP)
and Absence Without Leave.
Regarding issue (1), the Commission finds that complainant contacted the
EEO Counselor on July 12, 2004. The 14-day suspension was dated May 12,
2004, and issued to complainant on May 15, 2004, the date complainant
received the discipline but refused to sign it, according to the agency.
Complainant does not demonstrate otherwise. As complainant did not
contact an EEO Counselor within the prescribed 45-day time limitation,
issue (1) is dismissed for untimeliness.
Concerning issue (2) the Commission has long determined that claims
pertaining to the release of purportedly confidential information are
properly addressed under the statutory framework of the Privacy Act,
not through the EEO process. Regarding issue (3), the agency took
corrective action. Specifically, record evidence indicates that PS
Form 2240, Pay, Leave, or Other Hours Adjustment Request was completed
and signed by complainant and his approving official, on June 18, 2004,
adjusting his pay from 24 hours of FMLA to 24 hours of sick leave for June
5 - June 11, 2004. Therefore, the Commission finds that the complaint
fails to state a claim under the EEOC regulations because complainant
failed to show that he suffered harm or loss with respect to a term,
condition, or privilege of employment for which there is a remedy.
See Diaz v. Department of the Air Force, EEOC Request No. 05931049
(April 21, 1994). 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
_____05-13-05_____________
Date