0120083097
02-10-2009
Thomas K. Mathai, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Thomas K. Mathai,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120083097
Agency No. 1G-754-0001-08
Hearing No. 450-2008-00172X
DECISION
Upon review, the Commission finds that the agency's notice of final
action dated June 2, 2008, which fully implemented an EEOC Administrative
Judge's decision dated May 21, 2008, dismissing complainant's complaint
due to untimely EEO Counselor contact was proper pursuant to 29 C.F.R. �
1614.107(a)(2). In his complaint, complainant alleged discrimination
based on race (Asian Indian), national origin (Asian Pacific Islander)
and sex (male) when on September 13, 2007, he learned that he was not
given retreat rights.
During the relevant time complainant was employed as a GS-5 Clerk at
the agency's North Texas Process and Distribution Center (P&DC) in
Coppell, Texas. Complainant received notice on April 16, 2004, that
his position would be abolished in the future. Complainant received
a bid position in the same section on May 29, 2004. Complainant did
not receive retreat rights. Complainant filed a grievance in May 2007,
regarding the agency's failure to issue him retreat rights.
Complainant indicated that he first suspected alleged discrimination
on January 31, 2006. The record contains an affidavit from the Acting
Manager of the North Texas P&DC confirming that EEO posters containing
the requisite time frame for initiating EEO contact were on display
at complainant's worksite at the time complainant first suspected
discrimination. However, complainant did not initiate contact with
an EEO Counselor regarding the matter until October 2, 2007, which was
beyond 45-day time limit under the regulations. Despite his contentions,
we find that complainant's subsequent attempts to resolve the matter
via grievance and management, including his subsequent discovery which
might or might not prove the alleged discrimination, did not warrant an
extension of the time limit for contacting an EEO Counselor.
Accordingly, the agency's notice of final action dismissing the complaint
is AFFIRMED.
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
2/10/09
__________________
Date
2
0120083097
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013