0120092312
09-01-2009
James Stevenson, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
James Stevenson,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120092312
Agency No. 4G752012209
DECISION
By Notice of Appeal postmarked April 30, 2009, complainant filed an appeal
with this Commission from the March 25, 2009 final agency decision (FAD)
concerning his EEO 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.
At the time of the events at issue, complainant was employed by the
agency as a City Letter Carrier at The Colony, Texas Post Office.
In an EEO complaint filed on March 5, 2009, complainant alleged he was
discriminated against on the bases of his race (African American), color
(black), national origin (unspecified) and sex (male) when, on January
6, 2009, he was issued a 7-day suspension for working penalty overtime.
In its final decision, the agency dismissed the complaint for failure
to state a claim because complainant was not aggrieved as the suspension
was later rescinded pursuant to a union grievance.
As an initial matter, we find that complainant's appeal was untimely
filed. The record indicates that the certificate of mailing attached
to the agency's March 25, 2009 dismissal decision informed complainant
that it would be presumed that the final agency decision was received
within 5 days of mailing or by March 30, 2009.1 A review of the FAD
reveals that the agency properly advised complainant that he had thirty
(30) calendar days after receipt of its final decision to file his
appeal with the Commission. Therefore, in order to be considered
timely, complainant had to file his appeal no later than Wednesday,
April 29, 2009. Complainant has not offered adequate justification
for an extension of the applicable time limit for filing his appeal.
Therefore, complainant's April 30, 2009 appeal was untimely filed and
should be dismissed. See 29 C.F.R. � 1614.403(c).
Moreover, even if we were to accept the appeal, we would affirm the
agency's dismissal decision. It is undisputed that the suspension
was subsequently rescinded through the union grievance process. While
complainant argues that there is still a live controversy as part of a
harassment claim, we find that a fair reading of his complaint does not
reveal that he has alleged an ongoing pattern of harassing incidents.
Rather, the complaint focuses on this single incident of alleged
discriminatory discipline. Accordingly, the agency dismissal decision
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
September 1, 2009
__________________
Date
1 While not dispositive, the agency's "track and confirm" information
indicates that an item with the certified mailing number provided by
the agency in its decision was delivered on March 28, 2009.
??
??
??
??
2
0120092312
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
3
0120092312