01A15316_r
06-07-2002
Terrance H. Tracy, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Terrance H. Tracy v. United States Postal Service
01A15316
June 7, 2002
.
Terrance H. Tracy,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A15316
Agency No. 4-I-530-0097-01
DECISION
Complainant initiated contact with the agency's EEO Office on April
4, 2001. On July 17, 2001, complainant filed a formal EEO complaint
wherein he claimed that he was discriminated against on the bases of
his age (dob 2/10/49) and disability (carpal tunnel tendinitis) when on
April 24, 1999, he submitted a request for a transfer to the Franklin
Post Office and he did not receive a transfer, while three people have
been hired since he submitted his request.
The agency dismissed the complaint on the grounds that complainant
failed to initiate contact with an EEO Counselor in a timely manner.
The agency determined that the Franklin facility's Postmaster responded
to complainant's transfer request in February 2000, stating that there
were no openings for a limited duty employee with restrictions and that
complainant could not be considered for a clerk or carrier position.
The agency noted that the employees that were hired were selected off a
hiring worksheet for clerk and carrier positions. The agency determined
that complainant initiated contact with an EEO Counselor after the
expiration of the 45-day limitation period as complainant's EEO contact
was almost two years after he requested a transfer and ten months after
the response to complainant's transfer request. The Commission finds
that complainant should have reasonably suspected discrimination more than
45 days prior to April 4, 2001. The Commission finds that complainant's
EEO contact on April 4, 2001,<1> was after the expiration of the 45-day
time limit for contacting an EEO Counselor. Accordingly, the agency's
decision dismissing complainant's complaint was proper pursuant to 29
C.F.R. � 1614.107(a)(2) and 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
June 7, 2002
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1The EEO Counselor's report states that complainant initiated contact with
an EEO Counselor on April 14, 2001, but complainant's informal complaint
indicates that the initial EEO contact occurred on April 4, 2001.