0120081789
08-14-2008
Gerald V. Donald, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Gerald V. Donald,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120081789
Agency No. 1H-323-0001-08
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision dated February 12, 2008, 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.
Upon review, the Commission finds that complainant's complaint was
properly dismissed for untimely EEO Counselor contact.
Effective April 2, 2007, complainant received a temporary not-to-exceed
June 29, 2007, casual appointment at a Jacksonville, Florida facility
of the agency. Effective July 1, 2007, the agency extended his
appointment to September 28, 2007. In a Notification of Personnel
Action dated October 4, 2007 and addressed to complainant's address
of record, the agency indicated that complainant "voluntary resigned
due to medical problems" effective September 4, 2007. The agency noted
that August 7, 2007 was the last day that complainant was in pay status.
On December 3, 2007, complainant initiated contact with an EEO Counselor
alleging that the agency discriminated against him on the bases of race
(African-American), sex (male), and color (Black) when it asked him to
resign from his casual clerk position and did not allow him to complete
his appointment.
In its February 12 final decision, the agency dismissed complainant's
claim pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely EEO Counselor
contact. Specifically, the agency stated that complainant's initial EEO
contact is untimely because it occurred four months after his last day
in pay status and complainant was aware of the resignation personnel
action issued October 4. Further, the agency stated that complainant
was aware of the statutory time-frame because it fulfilled its obligation
to inform employees of their EEO rights. It provided an affidavit from
a Manager of Distribution Operations (MDO) at complainant's facility to
support its contention. The MDO stated that Poster 72 (Equal Employment
Opportunity is the Law) was posted by the central employees' time clock
when complainant was hired and thereafter.
Complainant filed the instant appeal. On appeal, complainant stated that
he was not aware that he had EEO rights as a casual employee because he
was told otherwise. Additionally, complainant stated that, in September
2007, the agency suggested he resign before it terminate his employment
and that he could reapply at a later date. Complainant stated that he
was unsure of the reason he was not allowed to return to work and did
not learn the reason until December 2007. Complainant provided medical
documentation stating that he could return to full duty on August 20,
2007 pending surgery. Lastly, complainant stated that he contacted
a Tampa EEO office in November and was told to use that date as his
initial contact.
Based on the record as a whole, we agree that complainant initiated
EEO contact in an untimely manner and, on appeal, has presented
no persuasive arguments or evidence warranting an extension of the
statutory time-frame. We conclude, at the latest, complainant was
aware that the agency would not allow him to return to work when he
received the October 4 Notification of Personnel Action, and there
is a 60-day period between that issue date and complainant's December
3 initial contact. We AFFIRM the agency's final decision dismissing
complainant's complaint.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (S0408)
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 (Z0408)
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
August 14, 2008
__________________
Date
2
0120081789
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
4
0120081789