01a51879
03-30-2005
W. Andrew Carnes, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
W. Andrew Carnes v. United States Postal Service
01A51879
March 30, 2005
.
W. Andrew Carnes,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A51879
Agency No. 1K-231-00119-04
DECISION
Complainant appeals to the Commission from the agency's October 1, 2004
decision dismissing his complaint for untimely filing of EEO complaint
pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely EEO Counselor
contact pursuant to 29 C.F.R. � 1614.107(a)(2), and for dissatisfaction
with the agency's EEO process pursuant to 29 C.F.R. � 1614.107(a)(8).
Complainant alleged that he was subjected to discrimination on the bases
of race, sex, age, and reprisal, when: (1) on August 12, 2000, complainant
was not advised whether or not her EEO complaint was processed; (2) in
November 2003, complainant was denied FMLA consideration; (3) on December
19, 2003, he was issued a Letter of Warning in Lieu of Suspension for
Unsatisfactory Work Performance for Failure to Report an Accident;
(4) on April 29, 2004, he was issued a Letter of Warning in Lieu of
Suspension for Failure to Follow Instructions; and (5) on August 4, 2004,
he was informed by letter dated July 28, 2004, that he was not entitled
to travel pay after being demoted and reassigned involuntarily.
We find that the agency properly dismissed the complaint for untimely
filing of the EEO complaint. The record indicates that the agency mailed
him his Right to File an Individual Complaint on October 1, 2004, with
a presumed 5-day delivery date (as indicated on the notice of right to
file) of October 6, 2004. Complainant filed his complaint on October 22,
2004, which is beyond the 15-day limitation period. Complainant has not
offered adequate justification for an extension of the applicable time
limit for filing his complaint. The Commission will not consider the
other grounds for dismissal, as the complaint was properly dismissed
pursuant to 29 C.F.R. � 1614.107(a)(2). Accordingly, the agency's
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
March 30, 2005
__________________
Date