0120113129
11-04-2011
Wallace Russell, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Northeast Area), Agency.
Wallace Russell,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Northeast Area),
Agency.
Appeal No. 0120113129
Agency No. 1B102002211
DECISION
Complainant filed a timely appeal with this Commission from the
Agency's decision dated May 11, 2011, 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. 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Mail processing Clerk at the Agency’s Morgan P&DC facility in
Manhattan, New York.
On April 22, 2011, Complainant filed a formal complaint alleging that
the Agency subjected him to discrimination on the bases of disability
(back and neck) and age (40+) when on February 23, 2011, he became
aware that other employees were working full shifts, including overtime,
in the Short Paid section while he was working only 2 hours per day.
The record indicates that Complainant, pursuant to the National Assessment
Process, was given a limited duty offer of 2 hours per day on April
28, 2010, which he accepted. The offer was made relative to his on the
job injury. Complainant asserts that in February 2011, he found out that
other employees were working full days and overtime while he was limited
to 2 hours per day.
The Agency dismissed the matter for untimely EEO counselor contact,
asserting that Complainant must have known sooner that other employees
were working more hours over the 10 months he had been working and
interacting with them. In his appeal, Complainant complains that his
complaint was not investigated and he did not like the way the dispute
resolution specialist handled the matter. In his appeal, Complainant
states his complaint “has nothing to do with discrete discriminatory
or retaliatory acts.” Complainant appears to argue that management
should have looked for additional work in the Short Paid section.
ANALYSIS AND FINDINGS
The record discloses that the alleged discriminatory event occurred on
April 28, 2010, but Complainant did not initiate contact with an EEO
Counselor until March 12, 2011, 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. The Commission agrees that Complainant
must have been on notice much sooner that employees were working more
hours than he. Further to the extent Complainant is stating he could
work more than 2 hours a day, that issue goes back to when he was offered
the limited duty job in April 2010. Additionally, the Commission finds
no error in the work of the dispute resolution specialist.
Accordingly, the Agency's final decision dismissing Complainant's
complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 (S0610)
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 (Z0610)
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
November 4, 2011
__________________
Date
2
0120113129
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120113129