0120073041
09-13-2007
Waldemar A. Feliciano, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Waldemar A. Feliciano,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120073041
Agency No. 4A006004207
DECISION
Complainant filed an appeal with this Commission from the agency's
decision dated May 18, 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.
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. In his complaint, complainant alleged that he was
subjected to discrimination on the basis of reprisal for prior protected
EEO activity when:
Complainant's appointment with the agency was not converted to
a full-time regular position.
In its final decision, the agency found that the alleged discriminatory
event occurred on August 4, 2006, but complainant did not initiate
contact with an EEO Counselor until January 24, 2007, which is beyond
the forty-five (45) day limitation period.
On appeal, complainant states that the discrimination to which he was
subjected, only began at the end of September 2006, and continued
thereafter. We note that in documents complainant submitted for
counseling, complainant stated that on October 27, 2006, he initiated a
grievance regarding the same issue that he was presenting for counseling
in January 2007. We note, however that the use of the negotiated
grievance procedure does not toll the time limit for contacting an EEO
Counselor. Schermerhorn v. United States Postal Service, EEOC Request
No. 05940729 (February 10, 1995). Accordingly, the events surrounding
complainant's conversion to full-time regular status clearly occurred
by October 27, 2006 and complainant should have requested counseling
within the regulatory time frame if he wished to seek relief through
the EEO process.
We find that although complainant recounts additional events in the
pursuit of his grievance that occurred after October 27, 2006, his
complaint does not describe any subsequent adverse employment actions
that he believes were acts of discrimination apart from his pursuit of
resolution. We concur with the agency that complainant has presented
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
September 13, 2007
__________________
Date
2
0120073041
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
3
0120073041