0120063742
01-10-2007
Hannibal Frazier-Bey, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Capital-Metro Area), Agency.
Hannibal Frazier-Bey,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Capital-Metro Area),
Agency.
Appeal No. 01200637421
Agency No. 1K231011905
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated May 31, 2006, dismissing his complaint of unlawful
employment discrimination in violation of the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.2
Upon review, the Commission finds that complainant's complaint was
properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely
EEO Counselor contact. In his complaint, complainant alleged that he
was subjected to discrimination on the basis of age (D.O.B. April 14,
1940) when, on September 12, 2005 and continuing, his reporting time
was changed from 2:30 p.m. to 4:30 p.m.
The record discloses that the alleged discriminatory event did not
occur on September 12, 2005, and continuing, as complainant indicates.
The alleged discriminatory event (effective date of change in duty hours)
was a discrete act which occurred on June 11, 2005, and complainant
did not initiate contact with an EEO Counselor until September 12,
2005, which is beyond the forty-five (45) day limitation period.
Complainant does not explain the reason why he cited September 12,
2005 as the date of alleged discrimination. There is no evidence in
the record to indicate that on September 12, 2005, complainant's duty
hours were again changed, or that on that date he requested to return
to his old duty hours and that such request was denied. There is also
no indication that until September 12, 2005 (approximately 93 days after
the change became effective), complainant did not reasonably suspect that
his change in duty hours was discriminatory. On appeal, complainant has
presented no persuasive arguments or evidence warranting an extension
of the time limit for initiating EEO Counselor contact.
The Commission concludes that complainant reasonably should have
suspected that his change in duty hours was discriminatory on June 11,
2005, when the change became effective. Filing time limitations for
this type of discrete employment action generally run from the time the
action occurred. See National Railroad Passenger Corp. v. Morgan, 122
S.Ct. 2061 (June 10, 2002). Here, we find that complainant failed to
exercise due diligence in pursuing the EEO process regarding his change
in duty hours, and this claim was properly dismissed on the grounds of
untimely EEO counselor contact. 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
January 10, 2007
__________________
Date
1 Due to a new data system, your case has been re-designated with the
above referenced appeal number.
2 We note that the agency also found no discrimination on the merits
of the case. We need not address the merits of the case however, as we
find that the procedural prerequisite of timely EEO Counselor Contact
was not met.
??
??
??
??
2
0120063742
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
3
0120063742