Steve Higgs, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMar 29, 2005
01a51562 (E.E.O.C. Mar. 29, 2005)

01a51562

03-29-2005

Steve Higgs, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Steve Higgs v. United States Postal Service

01A51562

03-29-05

.

Steve Higgs,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A51562

Agency No. 4F900030704

DECISION

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 and pursuant to 29 C.F.R. � 1614.107(a) (1), for

failure to state a claim. In his complaint, complainant alleged that he

was subjected to discrimination on the basis of reprisal for prior EEO

activity when:

On April 23, 2004, the Postmaster told the complainant to leave the

Compton Postal property.

On April 23, 2004, and continuing he was not allowed to pick up his mail

from his Post Office box located at the same facility.

The agency dismissed Claim 1, for untimely EEO counselor contact and

Claims 1 and 2, for failure to state a claim. With regard to Claim 1,

the record discloses that the alleged discriminatory event occurred

on April 23, 2004, but complainant did not initiate contact with an

EEO Counselor until September 16, 2004, which is beyond the forty-five

(45) day limitation period.<1> On appeal, complainant has presented no

persuasive arguments or evidence warranting an extension of the time

limit for initiating EEO counselor contact.

The Commission further finds that the agency properly dismissed Claims 1

and 2 for failure to state a claim because complainant has not shown

how he suffered a personal harm to a term, condition or privilege of

his employment with regard to the complained of conduct. Accordingly,

the agency's final decision dismissing complainant's complaint on the

basis of untimely EEO counselor contact and/or for failure to state a

claim, 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

___03-29-05_______________

Date

1 The EEO Dispute Resolution Inquiry Report

shows September 16, 2004, as the date of complainant's initial contact

with the EEO Office and April 23, 2004, as the date of the alleged

discriminatory event. We note that the FAD inadvertently identified

the date of the alleged discriminatory event, April 23, 2004, as the

date of complainant's initial EEO counselor contact. We affirm the

agency's decision to dismiss Claim 1 based on untimely EEO counselor

contact based on the actual date of complainant's counselor contact,

September 16, 2004, not the incorrect date given in the FAD.