0120080843
03-04-2008
Ray W. Bagbee, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Ray W. Bagbee,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120080843
Agency No. 1F941000108
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated November 26, 2007, 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., Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act
of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. In his complaint,
complainant alleged that he was subjected to discrimination on the
bases of race (African-American), disability (unspecified back), age
(D.O.B. July 1, 1953), and reprisal for prior protected EEO activity
under an EEO statute that was unspecified in the record when:
1. complainant was required to work on a compactor with no training,
license, or equipment;
2. complainant was required to wash walls;
3. complainant was not provided a locker for three years;
4. complainant was not provided a parking permit; and
5. agency officials refused to process his FMLA paperwork.
We note initially that complainant's Formal Complaint is very unclear.
Perhaps because of this lack of clarity, the agency characterized the
issues differently. Rather than using the issues listed in complainant's
Formal Complaint, the agency identified the issues listed in his Informal
Complaint as being the relevant issues, and dismissed the claims for
untimely EEO Counselor contact, collateral attack on another proceeding,
and for failure to state a claim. The Informal Complaint and the FAD
identify the issues as follows:
1. From September 6, 2003 to August 4, 2005, complainant was taken off
of his bid assignment and worked outside of his medical restrictions;
2. From January 5, 2005 to May 5, 2005, complainant was instructed
to perform work on the compactor; his supervisor refused to assist
Complainant in regards to, but not limited to: completing paperwork,
obtaining a parking permit; he was not provided training, a license,
proper equipment; or a locker;
3. On August 4, 2005, complainant was terminated from Postal employment
effective August 26, 2005;
4. On September 28, 2007, Postal management failed to provide
Complainant's Department of Labor (DOL) case worker with requested
information; and
5. On October 5, 2007, Postal management told a Federal Labor Relations
representative that Complainant did not have an injury.
Following a review of the record, we find that only the claim identified
as issue 2 in the FAD, concerning working on a compactor, the denial of
a parking permit, a license, proper equipment, and a locker, was raised
in complainant's Formal Complaint. The remaining claims or issues were
not included in the Formal Complaint and are therefore not addressed in
this decision.
The agency dismissed these issues for untimely EEO Counselor contact,
noting that the events occurred between January 5, 2005 and May 5, 2005
but that complainant did not contact a Counselor until October 5, 2007,
which is beyond the 45 day limitation period. Complainant presents no
persuasive arguments or evidence warranting an extension of the time
limit for initiating 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
March 4, 2008
__________________
Date
2
0120080843
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
4
0120080843