Richard H. Rolfe, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionAug 22, 2002
01A12983_r (E.E.O.C. Aug. 22, 2002)

01A12983_r

08-22-2002

Richard H. Rolfe, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Richard H. Rolfe v. United States Postal Service

01A12983

August 22, 2002

.

Richard H. Rolfe,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A12983

Agency No. 4B-030-0024-00

DECISION

Upon review, the Commission finds that complainant's complaint was

properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely

EEO Counselor contact. In his complaint, complainant alleged that he

was subjected to discrimination on the bases of disability and age when:

On June 21, 1999, complainant received a 7-day suspension notice,

charging him with failure to perform his assigned duties;

Complainant was harassed by his supervisor, [S1] from June 1999 and

continuing;

When complainant reported S1's harassment to the Postmaster, the

Postmaster failed to intervene.

The record discloses that the most recent date on which the alleged

discriminatory event could have occurred would have been on December 10,

1999, the last day complainant's supervisor, S1, reported for duty to the

same facility as complainant. Complainant did not initiate contact with

an EEO Counselor until March 11, 2000, which is beyond the forty-five

(45) day limitation period. On appeal, complainant has presented no

persuasive arguments or evidence warranting an extension of the time limit

for initiating EEO Counselor contact. We note, in particular, that the

use of the negotiated grievance procedure does not toll the time limit

for contacting an EEO Counselor. Schermerhorn v. United States Postal

Service, EEOC Request No. 05940729 (February 10, 1995). Accordingly, the

agency's final decision dismissing complainant's complaint 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

August 22, 2002

__________________

Date