0120090232
03-26-2009
Gary J. Cornell, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Gary J. Cornell,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120090232
Agency No. 4H335012108
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated September 5, 2008, 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. and
Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as
amended, 29 U.S.C. � 791 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.
At the time of the events at issue, complainant was employed as a
letter carrier in Largo, Florida. On December 3, 2007, the agency
issued complainant a Notice of Proposed Removal for alleged improper
conduct (threats) towards the Station Manager. On December 19, 2007,
the agency issued a Letter of Decision, upholding the proposal and
informing complainant that his removal would be effective January 7,
2008. Complainant filed a grievance on the matter which eventually went
to arbitration. On April 30, 2008, the arbitrator issued a decision
upholding the removal.
On June 11, 2008, complainant first sought EEO counseling alleging he
was subjected to discrimination on the bases of disability and reprisal
for prior protected EEO activity when he was removed from his position.
He subsequently filed a formal EEO complaint on the matter. On September
2, 2008, the agency issued its final decision dismissing the complaint
for untimely EEO counselor contact reasoning that complainant's initial
contact with the counselor was over four months after the effective date
of his removal and well beyond the regulatory 45-day limitation period.
The instant appeal followed.
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the Equal Employment
Opportunity Counselor within forty-five (45) days of the date of the
matter alleged to be discriminatory or, in the case of a personnel action,
within forty-five (45) days of the effective date of the action.
The record discloses that the alleged discriminatory removal was
effective on January 7, 2008, but complainant did not initiate contact
with an EEO Counselor until June 11, 2008, which is beyond the forty-five
(45) day limitation period. On appeal, complainant has presented no
persuasive arguments or evidence warranting an extension of the time
limit for initiating EEO Counselor contact. While complainant argues on
appeal that his removal was not effective until May 6, 2008, there is no
documentation in the record supporting this claim. The only document
containing this date is a date stamp indicating the day complainant's
union representative received the arbitrator's April 30, 2008 decision
upholding the removal. Under the facts as presented in this record, there
is no evidence to support a conclusion that complainant's removal was
not effective until his representative received the arbitration decision.
Accordingly, the agency's final decision dismissing complainant's
complaint is affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 77960,
Washington, DC 20013. 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 (S0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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 26, 2009
__________________
Date
2
0120090232
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
3
0120090232