Benny R. Honea, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMar 24, 2003
01A30867_r (E.E.O.C. Mar. 24, 2003)

01A30867_r

03-24-2003

Benny R. Honea, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Benny R. Honea v. United States Postal Service

01A30867

March 24, 2003

.

Benny R. Honea,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A30867

Agency No. 4G-760-0190-02

DECISION

The Commission finds the agency's October 15, 2002 decision dismissing

complainant's complaint proper pursuant to 29 C.F.R. � 1614.107(a)(2),

for untimely EEO Counselor contact. Complainant alleges discrimination on

the bases of sex and age when, on March 29, 2002, he learned that he was

being treated differently than a female employee who was allowed to work

in an open toe shoe (doctor ordered boot after surgery), yet complainant

was not allowed to work in the same type of open toe shoe in May 2000.

The agency found that complainant's April 9, 2002 EEO Counselor contact

was beyond the 45-day limitation period. Complainant argues that he

did not learn, until March 29, 2002, that the other employee was allowed

to wear the open toe shoe. However, on appeal, complainant also states

that he:

originally filed a grievance on February 21, 2002, when [he] first

became aware that the female employee was allowed to work in an open toe

orthopedic shoe. It was [his] understanding that the [resolution] to this

grievance was that this action was to cease and desist. After discovering

on March 29, 2002 that the discriminatory act was continuous in nature,

[he] contacted the EEO Counselor on April 9, 2002, eleven days later.

The Commission finds that complainant should have reasonably suspected

discrimination on February 21, 2002 when he became aware that the female

employee was allowed to work in an open toe orthopedic shoe. Therefore,

complainant's April 9, 2002 EEO Counselor contact is beyond the 45-day

limitation period. Complainant has not presented adequate justification

to warrant an extension of the applicable limitation period. Accordingly,

the agency's dismissal 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 24, 2003

__________________

Date