01a61758
08-24-2006
Edward K. Alston, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Edward K. Alston,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A61758
Agency No. 4G780024405
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision, dated December 15, 2005, dismissing his complaint of unlawful
employment discrimination alleging a violation of Title VII of the Civil
Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. The
agency dismissed the complaint, pursuant to 29 C.F.R. � 1614.107(a)(1) and
(2), for raising the same issue as that previously raised in another
complaint and for untimely EEO counselor contact.
In a complaint dated December 2, 2005, complainant alleged that he was
subjected to discrimination on the basis of reprisal for prior protected
EEO activity when he was denied his request to have Saturday and Sunday as
his scheduled days off rather than Wednesday and Sunday. During
counseling and in his complaint, complainant explained that he lost
Saturday and Sunday as his off-days several years before when the
Postmaster reposted all Clerk positions when he instituted a new policy
against crossing crafts, a practice which was apparently common in this
facility prior to this time. Complainant said he filed an EEO complaint
(Agency No. 4G-780-0201-00 and 4G-780-0348-00) over this initial schedule
change, and eventually had a hearing before an EEOC Administrative Judge
(AJ). On April 30, 2003, the AJ issued a decision in the agency's
favor.[1]
Complainant alleges in the instant complaint that, in May 2003 and
continuing to present, agency management resumed allowing employees to
cross crafts, rescinding the very policy the agency had used before the AJ
to justify changing complainant's off-days. Once the policy of allowing
employees to cross crafts resumed, complainant asserts he began again to
repeatedly ask for a schedule change to have Saturday and Sunday as his off-
days, but was denied. Complainant indicated in his complaint, as well as
on his pre-complaint counseling form, that the most recent denial was
August 22, 2005.
In its final decision, the agency asserts that this complaint should be
dismissed because the matter has already been settled by the AJ's April
2003 decision, which complainant did not appeal. In the alternative, the
agency argues that complainant's EEO counselor contact on August 23, 2005,
was untimely because he alleges the agency resumed allowing employees to
cross crafts over two years before in May 2003.
The Commission finds that the agency's dismissal of the complaint on the
basis that it states the same claim as that already adjudicated by the AJ
is incorrect to the extent that complainant is asserting that he was denied
requests for schedule changes made subsequent to the AJ's decision and
after he alleges the agency resumed allowing employees to cross crafts,
giving it more flexibility in scheduling. Therefore, the dismissal on this
basis is reversed. In the alternative, the agency has asserted that
complainant's August 23, 2005 initial contact with an EEO counselor was
untimely because complainant knew the policy on allowing employees to cross
crafts had resumed in May 2003, far beyond the 45-day time limitation.
However, the complaint at issue challenges the denial of his request for a
schedule change, not the resumption of the policy on allowing employees to
cross crafts. Therefore, the 45-day time limitation would run from a
denial by management to one of complainant's schedule change requests. In
his complaint, as well as on his pre-complaint counseling form, complainant
has indicated that the most recent denial was August 22, 2005, one day
before he sought counseling. However, complainant has not provided any
details or evidence, even on appeal, to suggest that a denial of a schedule
change request actually occurred on August 22, 2005, or within the 45-day
period before he sought EEO counseling. On appeal, complainant has
provided a copy of a letter dated February 4, 2005, addressed to the
Postmaster, requesting the his previous Saturday-Sunday off schedule be
"reinstated due to management's renewed flexibility in scheduling."
However, this was six months prior to the time complainant sought
counseling, and there is no indication in the record when or whether the
Postmaster responded to this request.
Accordingly, the agency's dismissal of this complaint is AFFIRMED,
pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely EEO counselor contact.
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
August 24, 2006
__________________
Date
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[1] There is no record of complainant filing a appeal from this AJ's
decision.