01993185_r
04-04-2002
Lorenzo R. Griswold, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Lorenzo R. Griswold v. United States Postal Service
01993185
April 4, 2002
.
Lorenzo R. Griswold,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01993185
Agency No. 1-H-321-1188-95
DECISION
On July 26, 1996, complainant filed a formal EEO complaint wherein he
claimed that he had been subjected to discrimination on the bases of his
race (Black), age (61) and in reprisal for his previous EEO activity under
Title VII and the Age Discrimination in Employment Act when on August
31, 1995, he was required to take remedial training on the Automated
Facing Canceling Sorter, and he received a negative evaluation prior
to that date. The agency accepted the complaint for investigation.
Subsequent to the investigation, complainant requested a hearing before
an EEOC Administrative Judge. On December 2, 1998, the Administrative
Judge remanded the case to the agency pursuant to the agency's request
for a determination on the issue of timeliness and a determination as to
whether the issues in the complaint were previously raised by complainant
in a prior complaint.
In its decision dated February 11, 1999, the agency dismissed the
complaint on the grounds that the complaint stated the same claim that
is pending before or has been decided by the agency or the Commission.
The agency determined that complainant filed an identical complaint in
February 1995 (Agency No. 1-H-321-1105-95). According to the agency,
complainant claimed in the prior complaint that his supervisor told him
that he was too slow to work on the Automated Facing Canceling Sorter.
Thereafter, complainant filed the instant appeal.
In a second decision dated March 30, 1999, the agency dismissed the
complaint on the grounds of untimely contact of an EEO Counselor,
failure to state a claim, and mootness. The agency determined that
complainant's negative evaluation was issued on May 19, 1995, yet
complainant did not contact the EEO Office until September 1, 1995,
after the expiration of the 45-day limitation period for contacting an
EEO Counselor. The complaint was dismissed on the grounds of failure to
state a claim as the agency determined that no discipline had been issued
and management did not retain a copy of the evaluation. The agency
concluded that complainant was not denied an employment benefit.
The complaint was also dismissed on the grounds of mootness based on
the fact that complainant was transferred to a facility in Boston in
July 1996. The agency determined that there is no reasonable expectation
that the matters at issue will recur.
In support of his appeal, complainant claims that his supervisor's
treatment of him caused him to suffer depression, loss of enjoyment of
life, and anxiety. With regard to the negative evaluation, complainant
states that his supervisor read it to him during the week of June
12, 1995. Complainant claims that on June 23, 1995, he submitted to
his supervisor a request for a copy of the evaluation. According to
complainant, he was denied a copy of the evaluation on July 29, 1995,
and his contact of an EEO Counselor was timely since it was only 33 days
after this denial.
With regard to the alleged negative evaluation, we observe that
complainant acknowledged on appeal that his supervisor read the evaluation
to him during the week of June 12, 1995. Complainant was therefore aware
of the alleged negative evaluation at that point yet he did not initiate
contact with an EEO Counselor until September 1, 1995. We find that
complainant had a reasonable suspicion of discrimination more than 45
days before he initiated contact with an EEO Counselor, and therefore
his EEO contact was untimely pursuant to 29 C.F.R. �1614.105(a)(1).
Accordingly, the agency's dismissal of this claim on the grounds of
untimely EEO contact was proper and is AFFIRMED.
With respect to complainant being assigned remedial training on the
Automated Facing Canceling Sorter, we find that the training did not
cause complainant to suffer harm to a term, condition, or privilege of
his employment. Therefore, complainant has failed to state a claim.
Accordingly, the agency's decision to dismiss the claim concerning
complainant being assigned remedial training on the Automated Facing
Canceling Sorter was proper and is AFFIRMED.<1>
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
April 4, 2002
__________________
Date
1In light of our affirmance of the agency
decision on this grounds, we need not address the agency's alternative
grounds for dismissal.