Grady Lee, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionNov 7, 2005
01a54157 (E.E.O.C. Nov. 7, 2005)

01a54157

11-07-2005

Grady Lee, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Grady Lee v. United States Postal Service

01A54157

November 7, 2005

.

Grady Lee,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A54157

Agency No. 1F-957-0058-04

DECISION

Complainant appeals to the Commission from the agency's decision

dated April 26, 2005, finding no discrimination. The agency, in its

dismissal/acceptance letter dated December 3, 2004, defined the complaint,

dated October 17, 2004, as alleging that complainant was discriminated

against based on race ( African American) and in reprisal for prior EEO

activity when:

complainant alleged harassment and a hostile work environment when on

February 21, 2004, he was denied a shop steward and given an investigative

interview;

on July 4, 2004, complainant was issued a Seven-Day Calendar Paper

Suspension; and

on August 27, 2004, complainant's supervisor called him a �nigger.�

Complainant has not challenged the agency's framing of the complaint.

In its December 3, 2004 letter, the agency dismissed claims (1) and (2)

for failure to state a claim and/or due to untimely EEO Counselor contact,

pursuant to 29 C.F.R. �� 1614.107(a)(1) and (2). The agency accepted

claim (3) for investigation. After the completion of investigation, the

agency issued its decision on April 26, 2005, stating that it asserted

legitimate, nondiscriminatory reasons for its action, which complainant

failed to rebut.

The record indicates that at the relevant time, complainant was a

Mailhandler at the agency's West Sacramento Main Office. The record

indicates that the alleged incidents in claims (1) and (2) occurred

on February 21, 2004, and July 4, 2004, respectively. Complainant

contacted an EEO Counselor with regard to the incidents on September 8,

2004, which was beyond the 45-day time limit set by the regulations.

Although complainant contends that he filed grievances concerning the

matters, which were sustained in his favor, the Commission has held that

the use of the negotiated grievance procedure does not toll the time

limits for contacting an EEO Counselor. See Schermerhorn v. USPS, EEOC

Request No. 05940729 (February 10, 1995). Thus, the Commission finds

that the agency properly dismissed claims (1) and (2) due to untimely

EEO Counselor contact.<1>

With regard to claim (3), the agency stated that it took immediate

action regarding the alleged racial epithet. The record indicates that

after complainant reported the alleged incident, the agency initiated an

investigation. Although the responsible supervisor, who was also African

American, denied making that racial epithet, the agency's Manager, who

was also African American, did not stop the investigation and further

interviewed other witnesses. Based on the investigation, the Manager

concluded that the responsible supervisor did use the alleged racial

epithet toward complainant on August 27, 2004. The Manager issued a

Letter of Warning to the supervisor for the alleged incident and advised

him that any future incidents of this type could result in his removal

from the agency. After a review of the record, the Commission finds

that the racial epithet, standing alone, is insufficient to constitute

a hostile work environment in the instant case.

Accordingly, the agency's decision dismissing claims (1) and (2) and

finding no discrimination for claim (3) 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

November 7, 2005

__________________

Date

1Although the agency dismissed claim (1)

on the alternative grounds of failure to state a claim, we need not

discuss such in this decision since the dismissal is affirmed due to

untimely EEO Counselor contact.