01a60935
04-28-2006
Larry D. Graves v. United States Postal Service 01A60935 April 28, 2006 . Larry D. Graves, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Larry D. Graves v. United States Postal Service
01A60935
April 28, 2006
.
Larry D. Graves,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A60935
Agency No. 4E-570-0003-03
Hearing No. 320-2005-00047X
DECISION
Upon review, the Commission finds that the agency's final action dated
October 6, 2005, dismissing complainant's complaint due to untimely
EEO Counselor contact is proper pursuant to 29 C.F.R. � 1614.107(a)(2).
In his complaint, complainant alleged discrimination based on sex (male)
and age (DOB: 4/11/48) when in spring 2001, December 2001, January 2002,
and April 2002, he was denied the opportunity for an Officer-in-Charge
(OIC) assignment. The record indicates that at the completion of
the investigation, complainant requested a hearing before an EEOC
Administrative Judge (AJ). On September 30, 2005, the AJ issued an Order
of Dismissal dismissing the complaint without a hearing. The agency fully
implemented the AJ's decision and stated that complainant's EEO Counselor
contact on October 9, 2002, was beyond the 45-day time limit after the
denial of OIC assignments which occurred in or prior to April 2002.
On appeal, complainant contends that he timely contacted an EEO Counselor
after he was not selected for the Postmaster position on September 16,
2002. However, the Commission has held that in determining when the
limitation period is triggered, the focus is on the time of the alleged
discriminatory act, not the time when the consequences of the act become
most painful. See Delaware State College v. Ricks, 449 U.S. 250, 258
(1980). Thus, the Commission finds that complainant should have been
aware of the alleged discrimination at the time the discriminatory act
occurred, i.e., when he was denied OIC assignments in or prior to April
2002, and not when the damage purportedly caused by these acts is felt
(i.e., when he was not promoted to the Postmaster position in question).
Complainant's non-selection for the Postmaster position is not at issue
in the instant complaint.
Accordingly, the agency's final action dismissing the complaint is
hereby 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
April 28, 2006
__________________
Date