01A30867_r
03-24-2003
Benny R. Honea, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Benny R. Honea v. United States Postal Service
01A30867
March 24, 2003
.
Benny R. Honea,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A30867
Agency No. 4G-760-0190-02
DECISION
The Commission finds the agency's October 15, 2002 decision dismissing
complainant's complaint proper pursuant to 29 C.F.R. � 1614.107(a)(2),
for untimely EEO Counselor contact. Complainant alleges discrimination on
the bases of sex and age when, on March 29, 2002, he learned that he was
being treated differently than a female employee who was allowed to work
in an open toe shoe (doctor ordered boot after surgery), yet complainant
was not allowed to work in the same type of open toe shoe in May 2000.
The agency found that complainant's April 9, 2002 EEO Counselor contact
was beyond the 45-day limitation period. Complainant argues that he
did not learn, until March 29, 2002, that the other employee was allowed
to wear the open toe shoe. However, on appeal, complainant also states
that he:
originally filed a grievance on February 21, 2002, when [he] first
became aware that the female employee was allowed to work in an open toe
orthopedic shoe. It was [his] understanding that the [resolution] to this
grievance was that this action was to cease and desist. After discovering
on March 29, 2002 that the discriminatory act was continuous in nature,
[he] contacted the EEO Counselor on April 9, 2002, eleven days later.
The Commission finds that complainant should have reasonably suspected
discrimination on February 21, 2002 when he became aware that the female
employee was allowed to work in an open toe orthopedic shoe. Therefore,
complainant's April 9, 2002 EEO Counselor contact is beyond the 45-day
limitation period. Complainant has not presented adequate justification
to warrant an extension of the applicable limitation period. Accordingly,
the agency's dismissal 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 24, 2003
__________________
Date