0120073340
10-25-2007
Walter P. Lazdowski, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Walter P. Lazdowski,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120073340
Agency No. 1G-761-0034-07
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision (FAD) dated June 28, 2007, dismissing his complaint of
unlawful employment discrimination in violation of Title VII of the
Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e
et seq. In his complaint, complainant alleged that he was subjected to
discrimination based on reprisal for prior protected EEO activity when:
1. in January 2002, a court reinstated him with back pay and all benefits,
but he received only back pay, no benefits; in November 2006 he received
notice that he was owed payment for annual leave taken but not earned,
and
2. effective March 6, 2003, he left the agency because of harassment.
In January 2002, the United States District Court for the Northern
District of Texas, Lubbock Division, ordered that complainant be
reinstated with benefits and front pay until he was reinstated.
Complainant alleges reprisal discrimination when in November 2006,
he received a debt collection notice from a collection agency in the
amount of $2330.54. The debt was for overdrawing annual leave by
127.74 hours. Complainant avers that his annual leave was overdrawn
because the agency did not restore it in compliance with the court order.
The agency previously sent complainant a debt notice for the above amount
in March 2003.
Complainant initiated contact with an EEO counselor on April 18, 2007.
The FAD dismissed the complaint for failure to timely initiate contact
with an EEO counselor. Noting that it previously sent a debt notice to
complainant in March 2003, the FAD found the events in both claims 1 and
2 occurred more than four years prior to complainant contacting an EEO
counselor. An aggrieved person must seek EEO counseling within 45 days
of the date of the alleged discriminatory action, or in the case of a
personnel action, within 45 days of the effective date of the action.
29 C.F.R. � 1614.105(a)(1).
On appeal, complainant contends that the March 2003 debt notice was
sent to the wrong address, and that he did not receive it. Complainant
contends that since February 2007, he paid $2,330.16 of the debt, thus
reopening the matter. He submitted a May 2007 agency invoice for the
remaining debt at that time (complainant started making payments around
February 2007). He does not address the timeliness of claim 2.
We find complainant failed to timely initiate EEO counseling. Regarding
claim 1, he acknowledges becoming aware of the debt by November 2006,
and he did not contact an EEO counselor until April 18, 2007, beyond the
45 day time limit to do so. The agency's continued effort to collect the
same debt is not a different claim, and does not extend the time limit to
initiate EEO counseling. Regarding claim 2, complainant contacted an EEO
counselor over four years from the alleged harassment and constructive
discharge, making this matter untimely.
We also find that we do not have jurisdiction over claim 1. Complainant
is alleging that the agency violated a court order when it did not
restore his annual leave, resulting in overdrawn annual leave and
concomitant debt. Claims regarding compliance with the court order must
be addressed to the court, not to the EEOC. We do not have jurisdiction
to enforce the court order.
The FAD also dismissed claim 2 on the grounds that complainant previously
filed an EEO complaint on the same matter that had been decided by
the agency. 29 C.F.R. � 1614.107(a)(1). Specifically, it found that
complainant filed formal complaint 1G-761-0196-02 on October 4, 2002,
alleging harassment, that the agency dismissed the complaint on February
28, 2003, and complainant did not appeal the dismissal. On appeal,
complainant contends he made a formal complaint regarding claim 2 in
2003, but did not receive a decision until 2006. He does not submit a
copy of the decision, nor appeal it at this time.
We decline to affirm the dismissal of claim 2 on the grounds that
complainant previously filed an EEO complaint on the same matter which
has been decided by the agency. First, the record only contains agency
electronic tracking information on complaint 1G-761-0196-02, not a copy
of the complaint or dismissal thereof. Second, the tracking information
indicates complaint 1G-761-0196-02 was filed and dismissed prior to
complainant's alleged constructive discharge, a large part of claim 2.
However, we affirm the FAD's dismissal of claim 2 in the complaint before
us for failure to timely initiate EEO counseling on the matter.
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
October 25, 2007
__________________
Date
2
0120073340
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
4
0120073340