01A43820_r
09-10-2004
Keith Gregory, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Keith Gregory v. United States Postal Service
01A43820
September 10, 2004
.
Keith Gregory,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A43820
Agency No. 4G-780-0251-03
DECISION
Complainant filed a timely appeal from the agency's April 26, 2004
decision to dismiss his complaint of unlawful discrimination in violation
of the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq. In a formal complaint dated January 29, 2004,
complainant alleged that he was subjected to discrimination on the basis
of age when:
On July 8, 2003, complainant was given a Pre-Disciplinary Discussion
for using 36 minutes of overtime on July 5, 2003, and told if he did
not like the way things are he could retire and go to Wal-Mart.
On appeal, complainant provides a detailed narrative describing not only
the claim raised in his complaint, i.e. the July 8, 2003 pre-disciplinary
discussion, but other incidents occurring from October 2002 through to and
including the July 8, 2003 pre-disciplinary discussion. The Commission
notes that these claims were not previously raised. It is inappropriate
for complainant to raise these new claims for the first time as part of
his May 2004 appeal. See Hubbard v. Department of Homeland Security, EEOC
Appeal No. 01A40449 (April 22, 2004). Upon review, the Commission finds
that the agency properly dismissed complainant's complaint of unlawful
employment discrimination pursuant to 29 C.F.R. � 1614.107(a)(1), for
failure to state a claim. Complainant was not aggrieved by the July 8,
2003 incident.
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
September 10, 2004
__________________
Date