01a54157
11-07-2005
Grady Lee, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Grady Lee v. United States Postal Service
01A54157
November 7, 2005
.
Grady Lee,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A54157
Agency No. 1F-957-0058-04
DECISION
Complainant appeals to the Commission from the agency's decision
dated April 26, 2005, finding no discrimination. The agency, in its
dismissal/acceptance letter dated December 3, 2004, defined the complaint,
dated October 17, 2004, as alleging that complainant was discriminated
against based on race ( African American) and in reprisal for prior EEO
activity when:
complainant alleged harassment and a hostile work environment when on
February 21, 2004, he was denied a shop steward and given an investigative
interview;
on July 4, 2004, complainant was issued a Seven-Day Calendar Paper
Suspension; and
on August 27, 2004, complainant's supervisor called him a �nigger.�
Complainant has not challenged the agency's framing of the complaint.
In its December 3, 2004 letter, the agency dismissed claims (1) and (2)
for failure to state a claim and/or due to untimely EEO Counselor contact,
pursuant to 29 C.F.R. �� 1614.107(a)(1) and (2). The agency accepted
claim (3) for investigation. After the completion of investigation, the
agency issued its decision on April 26, 2005, stating that it asserted
legitimate, nondiscriminatory reasons for its action, which complainant
failed to rebut.
The record indicates that at the relevant time, complainant was a
Mailhandler at the agency's West Sacramento Main Office. The record
indicates that the alleged incidents in claims (1) and (2) occurred
on February 21, 2004, and July 4, 2004, respectively. Complainant
contacted an EEO Counselor with regard to the incidents on September 8,
2004, which was beyond the 45-day time limit set by the regulations.
Although complainant contends that he filed grievances concerning the
matters, which were sustained in his favor, the Commission has held that
the use of the negotiated grievance procedure does not toll the time
limits for contacting an EEO Counselor. See Schermerhorn v. USPS, EEOC
Request No. 05940729 (February 10, 1995). Thus, the Commission finds
that the agency properly dismissed claims (1) and (2) due to untimely
EEO Counselor contact.<1>
With regard to claim (3), the agency stated that it took immediate
action regarding the alleged racial epithet. The record indicates that
after complainant reported the alleged incident, the agency initiated an
investigation. Although the responsible supervisor, who was also African
American, denied making that racial epithet, the agency's Manager, who
was also African American, did not stop the investigation and further
interviewed other witnesses. Based on the investigation, the Manager
concluded that the responsible supervisor did use the alleged racial
epithet toward complainant on August 27, 2004. The Manager issued a
Letter of Warning to the supervisor for the alleged incident and advised
him that any future incidents of this type could result in his removal
from the agency. After a review of the record, the Commission finds
that the racial epithet, standing alone, is insufficient to constitute
a hostile work environment in the instant case.
Accordingly, the agency's decision dismissing claims (1) and (2) and
finding no discrimination for claim (3) 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
November 7, 2005
__________________
Date
1Although the agency dismissed claim (1)
on the alternative grounds of failure to state a claim, we need not
discuss such in this decision since the dismissal is affirmed due to
untimely EEO Counselor contact.