0120100999
06-03-2010
Mark J. Zdeb, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Western Area), Agency.
Mark J. Zdeb,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Western Area),
Agency.
Appeal No. 0120100999
Agency No. 1E985000809
DECISION
Complainant filed a timely appeal with this Commission from the
agency's decision dated November 19, 2009, dismissing his complaint
of unlawful employment discrimination in violation of 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 disability
(multiple sclerosis), age (50 years old at time of incident), and reprisal
for prior protected EEO activity under the Rehabilitation Act when:
1. Complainant did not receive a Pay for Performance Merit increase for
FY 2008.
The agency dismissed the claim for untimely EEO counselor contact.
We note initially that the agency characterized the claim differently
than above, describing the issue as "on June 26, 2009, you attempted
to have your FY 2008 Pay for Performance exclusion reversed."
The agency found, however, that despite complainant's contention that
the alleged discriminatory act occurred on June 26, 2009, the Pay for
Performance review process was conducted in October and November of
2008 and complainant was fully aware of his rating status at that time.
Furthermore, according to the FAD, complainant appealed the denial of his
Pay for Performance Merit increase internally and was notified of the
final status of his appeal on March 19, 2009. Accordingly, the agency
found that complainant's July 27, 2009 counselor contact was beyond the
45-day limit and was thus untimely.
A review of the Formal Complaint reveals that complainant was aware
prior to June 26, 2009 that he had not received a Pay for Performance
Merit increase for 2008. See Formal Complaint. In addition, the
Complaint shows that complainant disputed the action internally, although
contrary to the FAD, complainant maintains that he was notified in March
that "my PFP would be corrected and that I would be made whole." Id.
Complainant, however, maintains that it was not until June 2009 that he
was told by the Human Resource Manager (HRM) that "she could do nothing
about reversing the PFP decision." Id.
Following a review of the record, we find that the alleged harm occurred
when complainant did not receive his Pay for Performance increase for
2008, not when HRM allegedly told him that "she could do nothing."
The Commission has consistently held that internal appeals or informal
efforts to challenge an agency's adverse action and/or the filing of a
grievance do not toll the running of the time limit to contact an EEO
Counselor. See Hosford v. Department of Veterans Affairs, EEOC Request
No. 05890038 (June 9, 1989); Miller v. United States Postal Service, EEOC
Request No. 05880835 (February 2, 1989). Thus the time for complainant
to have acted was within 45 days of learning he had not received his
increase, not after he learned his dispute with management about the
denial of his increase came to an end. Because complainant did not
contact a counselor within 45 days of not receiving his 2008 increase,
complainant's counselor contact was untimely and we affirm the FAD.
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
June 3, 2010
__________________
Date
2
0120100999
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
4
0120100999