01A24732
04-03-2003
Leon A. Puissegur, Jr., Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Leon A. Puissegur, Jr. v. United States Postal Service
01A24732
04-03-03
.
Leon A. Puissegur, Jr.,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A24732
Agency No. 1G-701-0083-97
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated August 16, 2002, 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., Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act
of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. In his complaint,
complainant alleged that he was subjected to discrimination on the bases
of race (Caucasian), color (White), disability(service connected veteran),
age (over 40), and reprisal for prior EEO activity when on October 27-28,
1996 he was denied overtime.
The agency dismissed the overtime claim for untimely EEO Counselor
contact, stating that the contact occurred on January 23, 1997, and
that it had been 87 days after the incident. Complainant appealed, and
argued that the Commission had, in previous appeal decisions, reversed
the agency and remanded this claim for processing.
A review of the record reveals the following facts. On January 23, 1997,
complainant filed a complaint, agency number 1G-701-0020-97, in which
he raised the issue of overtime denial, along with an unrelated claim.
On June 13, 1997, the agency issued a letter in which it accepted the
unrelated issue for processing, and partially dismissed the overtime
claim, stating that it had not been raised with the EEO Counselor, and
instructing complainant to contact an EEO Counselor. The contact date
was to be considered the date of the formal complaint, January 23, 1997.
Complainant subsequently contacted an EEO Counselor on June 24, 1997,
in which he raised the overtime claim which was previously not accepted.
Notably, the pre-complaint counseling form mistakenly listed the date
of the incident as October 27-28, 1997, not 1996. The agency issued
a FAD on February 16, 1999, in which it dismissed the claim for being
the same as that previously raised in an already filed complaint, that
of agency number 1G-701-0024-97. After the complainant appealed to the
Commission in EEOC Appeal No. 01993176 (November 16, 2000), the FAD was
reversed and remanded for processing.
The agency accepted the issue on November 22, 2000, and then subsequently
rescinded its acceptance on November 27, 2000, stating that complainant's
EEO Counselor contact was untimely. The complainant appealed that
FAD to the Commission in EEOC Appeal No. 01A11874 (January 30, 2002),
in which we again reversed the FAD and remanded the claim for processing.
The agency, for a third time, dismissed the overtime claim in a FAD dated
August 16, 2002, stating that the a review of the record had revealed the
typographical error which had led to the confusion and that complainant's
overtime claim pertained to October 27-28, 1996, and that his subsequent
EEO Counselor contact had been untimely. Complainant appealed.
We find that the record shows that when complainant was referred to an EEO
Counselor after the partial dismissal of his overtime claim on June 13,
1997, the pre-complaint counseling form mistakenly gave the wrong date,
October 1997, for the incident date. Given that the date of the denial
of overtime could not have occurred four months after complainant's
contact with an EEO Counselor, we find that the dates which complainant
claimed he was discriminatorily denied overtime were on October 27-28,
1996. The evidence in the record now shows that complainant had filed
a complaint on the identical issue in agency number 1G-701-0024-97.
Further, the record contains a copy of a settlement agreement between the
complainant and the agency which shows that agency number 1G-701-0024-97
was settled on April 22, 1999.
Therefore, pursuant to 29 C.F.R. � 1614.107(a)(1), we affirm the final
decision of the agency.
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
___04-03-03_______________
Date