01a22436_r
01-27-2003
Rudy W. Rivers, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Rudy W. Rivers v. United States Postal Service
01A22436
January 27, 2003
.
Rudy W. Rivers,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A22436
Agency No. 4F-945-0044-02
DECISION
Complainant filed the instant appeal from the agency's decision dated
March 11, 2002, dismissing complainant's complaint. In his complaint,
complainant alleged discrimination based on race (Black), sex (male),
and disability (shoulder and hand), when:
In May 2000, because he took longer to deliver express mail than had
been anticipated by his supervisor, he was given a �just cause interview�;
On May 18, 2000, he requested Leave Without Pay (LWOP) for a doctor's
appointment on May 22, 2000, resulting in his supervisor raising his
voice and stating that he needed at least a week's notice;
On May 26, 2000, he located a forwarding address for his supervisor to
which he responded, �well, I guess you are good for something�;
In June 2000, his supervisor continuously checked on complainant and
asked him what he was doing;
In September 2000, complainant was given a �just cause interview� by
another supervisor which he believed was caused by his supervisor being
negligent in discharging his duties;
On September 27, 2001, during a meeting, his supervisor stated that there
was nothing he hated worse than a carrier telling him that he was doing
him a favor; and,
He called in sick on November 28, 2001, due to being stressed out
and fatigue. On December 8, 2001, he noticed that his paycheck was 16
hours short because his supervisor had not entered his sick leave and
Thanksgiving holiday pay in the computer.
The agency dismissed claims (6) and (7) for failure to state a
claim pursuant to 29 C.F.R. � 1614.107(a)(1). The Commission finds
that complainant is not aggrieved in claim (6) and that even if the
complaint is considered as a claim of harassment, complainant has failed
to raise sufficiently severe incidents to state a claim of harassment.
The Commission finds that claim (7), a discrete act which is separate in
time from claims (1) - (5), states a claim. Complainant is aggrieved by
allegedly being denied pay. Although the agency asserts that complainant
was subsequently paid for the 16 hours of leave that was not included
in complainant's paycheck, we find that the agency has failed to provide
evidence in the record showing that such payment was made. Furthermore,
claim (7) is also not moot because complainant has requested compensatory
damages and the agency failed to address this issue.
With regard to claims (1) through (5), complainant contacted an EEO
Counselor on December 3, 2001. Since the alleged incidents occurred on or
prior to September 27, 2001, the Commission finds that complainant's EEO
Counselor contact was beyond the 45-day time limit set by the regulations.
On appeal, complainant fails to present adequate justification to warrant
an extension of the applicable time limit for contacting an EEO Counselor.
Therefore, we find that claims (1) - (5) were properly dismissed pursuant
to 29 C.F.R. � 1614.107(a)(2).
Accordingly, the agency's decision dismissing claims (1) - (6) is
AFFIRMED. The agency's decision dismissing claim (7) is REVERSED and
we REMAND claim (7) to the agency for further processing in accordance
with this decision and the Order herein.
ORDER (E0900)
The agency is ordered to process the remanded claims in accordance with
29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant
that it has received the remanded claims within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue
to complainant a copy of the investigative file and also shall notify
complainant of the appropriate rights within one hundred fifty (150)
calendar days of the date this decision becomes final, unless the matter
is otherwise resolved prior to that time. If the complainant requests a
final decision without a hearing, the agency shall issue a final decision
within sixty (60) days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 (T0900)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. In the alternative, you may file a civil action after
one hundred and eighty (180) calendar days of the date you filed your
complaint with the agency, or your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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 27, 2003
__________________
Date