0120081891
11-30-2009
Carlos C. Jimenez, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Carlos C. Jimenez,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120081891
Agency No. 1A-106-0025-07
DECISION
On March 14, 2008, complainant filed an appeal from the agency's final
decision dated February 13, 20081, concerning his equal employment
opportunity (EEO) complaint alleging 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. The appeal is is accepted pursuant
to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission
AFFIRMS the agency's final decision.
BACKGROUND
At the time of events giving rise to this complaint, complainant worked
as a mail handler at the agency's Westchester Processing and Distribution
Center in White Plains, New York.
On December 30, 2005 and April 15, 2006, the agency issued letters
of warning for complainant's absences, which complainant alleged were
taken under the Family and Medical Leave Act (FMLA). Complainant filed
grievances on these matters and went to arbitration. On October 5, 2006,
an arbitrator found that the agency did not have just cause to issue the
December 30, 2005 letter of warning because complainant was confused over
his FMLA coverage. The arbitrator's award required the agency to remove
the December 30, 2005 letter of warning from all files. In contrast,
on April 30, 2007, an arbitrator found that the April 15, 2006 letter
of warning was issued for just cause because complainant had sufficient
time to clarify any outstanding issues regarding his FMLA coverage.
The agency suspended complainant for fourteen days without pay on July
8, 2006, and for fourteen days on October 30, 2006. Complainant filed
grievances on these suspensions. In a pre-arbitration meeting on May 7,
2007, the agency and union advocate agreed that the agency would expunge
the July 8, 2006 suspension in its entirety and reimburse complainant
the monies for the time served in suspension. The reimbursement was
processed on June 6, 2007. The May 7, 2007 settlement agreement also
stipulated that the fourteen-day suspension issued on October 30, 2006
would be served as a seven-day paper suspension.
Complainant initially contacted an EEO counselor on June 12, 2007,
and filed an EEO complaint on August 24,2 2007. On September 4, 2007,
the agency characterized complainant's allegations of discrimination
as follows. Complainant alleged discrimination on the bases of race
(Hispanic) and reprisal for prior protected EEO activity under Title
VII when:
1. on or around October 14, 2006, the plant manager stopped an
interview of complainant by the editor of the District magazine;
2. correct processing of complainant's grievance was delayed
until May 7, 2007;
3. since on or about December 2006, complainant is constantly paged
when using the rest room;
4. since on or about December 2006, complainant is moved from his
section on Saturdays and Sundays;
5. on or about August 2, 2007, complainant was issued a notice of
fourteen day suspension;
6. on or about August 6, 2007, complainant was instructed to provide
medical documentation which was not accepted;
7. on or about August 6, 2007, complainant was harassed and
threatened by the supervisor.
The agency accepted for investigation claims 3 through 7. It dismissed
claim 1 because complainant failed to initiate contact with an EEO
counselor within forty-five days of the date of the matter alleged to be
discriminatory, pursuant to 29 C.F.R. � 1614.105(a)(1). Pursuant to 29
C.F.R. � 1614.107(a)(1), the agency dismissed claim 2 for failure to state
a claim because it constituted an attempt to use the EEO process to lodge
a collateral attack on another forum's proceeding. In a footnote, the
agency noted that complainant alleged ongoing harassment since December
2006; however it dismissed this allegation because complainant should
have brought this issue forward when he filed a previous EEO complaint
(1A-106-0001-07) on or around December 1, 2006.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of his right to request
a hearing before an EEOC Administrative Judge (AJ). In accordance with
complainant's request, the agency issued a final decision without a
hearing, pursuant to 29 C.F.R. � 1614.110(b). The decision concluded
that complainant failed to prove that he was subjected to discrimination
as alleged.
CONTENTIONS ON APPEAL
On appeal, complainant contends that the agency erred in dismissing
claims 1 and 2 and requests a more thorough investigation into the
agency's actions dating back to December 30, 2005. In addition,
complainant contends that there is sufficient evidence in the record to
prove discrimination.
ANALYSIS AND FINDINGS
Because this is an appeal from a decision issued without a hearing,
pursuant to 29 C.F.R. � 1614.110(b), the agency's decision is subject to
de novo review by the Commission. 29 C.F.R. � 1614.405(a). See EEOC
Management Directive 110, Chapter 9, � VI.A. (November 9, 1999)
(explaining that the de novo standard of review "requires that the
Commission examine the record without regard to the factual and legal
determinations of the previous decision maker," and that EEOC "review the
documents, statements, and testimony of record, including any timely and
relevant submissions of the parties, and . . . issue its decision based
on the Commission's own assessment of the record and its interpretation
of the law").
Dismissal of Claim 1: Failure to Timely Initiate Contact with EEO
Counselor
In his brief on appeal, complainant contends that the agency erred in
dismissing claim 1 for failure to timely initiate contact with an EEO
Counselor because agency officials "make you believe that something is
going to be fix[ed] in[-]house" so that it is unnecessary to file an
EEO complaint.
According to EEOC Regulation 29 C.F.R. � 1614.105(a)(1), an aggrieved
person must initiate contact with an Equal Employment Opportunity
Counselor within forty-five days of the date of the matter alleged to be
discriminatory or, in the case of a personnel action, within forty-five
days of the effective date of the action.
The record shows that the interruption of complainant's interview
allegedly occurred on or around October 14, 2006, but complainant did
not initiate contact with an EEO Counselor until June 12, 2007, which
is well beyond the forty-five day limitation period. To the extent
that complainant may have waited until the arbitration process had
ended to seek EEO counseling, the Commission has consistently held that
utilization of agency procedures, union grievances, and other remedial
processes does not toll the time limit for contacting an EEO Counselor.
See Ellis v. United States Postal Service, EEOC Appeal No. 01992093
(November 29, 2000). Accordingly, the Commission affirms the agency's
dismissal of claim 1.
Dismissal of Claim 2: Collateral Attack on Another's Proceeding
In his formal EEO complaint, complainant appears to allege that he was
subjected to discrimination when the agency failed to remove from its
records the April 15, 2006 letter of warning and the October 30, 2006
seven-day paper suspension. 3 Complainant argued that both disciplinary
measures should have been removed from his record because they were
"in between that year that I should have been covered under [the] Family
Medical Leave Act." The agency, however, characterized this allegation
as a delay in the correct processing of complainant's grievance until May
7, 2007 and dismissed this claim as a collateral attack on the grievance
settlement proceedings.
The Commission finds that the agency erred in characterizing this claim
because the relevant issue did not revolve around a delay in processing
settlement agreements in another forum. Rather, the allegation should
have been framed as discriminatory failures to remove the disciplinary
actions in question from complainant's record. Having reviewed the
investigative record, the Commission finds that there is sufficient
information to determine whether the agency's failures to remove the
April 15, 2006 letter of warning and the October 30, 2006 seven-day
paper suspension were the results of unlawful discriminatory motives.
According to the record, the agency issued to complainant the April 15,
2006 letter of warning because complainant incurred several unscheduled
absences without adhering to the agency's policy of notifying the agency
in advance of taking FMLA leave. At the time of the issuance of the
April 15, 2006 letter of warning, complainant had a pending grievance
about the agency's issuance of a December 30, 2005 letter of warning
on similar grounds. The arbitrator in that grievance did not issue a
decision until October 5, 2006, then finding that there was sufficient
confusion and inconsistency over complainant's FMLA coverage such that
the agency did not have just cause to issue the December 30, 2005 letter
of warning. The arbitrator requested that the agency remove any record
of the December 30, 2005 letter of warning from all files.
In his formal complaint and brief on appeal, complainant essentially
contends that the October 5, 2006 arbitrator's decision estopped the
agency from issuing disciplinary actions for similar conduct from
December 30, 2005 to October 5, 2006. He argues, in effect, that the
agency should have removed any similar disciplinary actions after the
issuance of the October 5, 2006 arbitrator's decision. Therefore,
according to complainant, the agency's failure to remove the April 15,
2006 letter of warning after the October 5, 2006 arbitrator's decision
was due to unlawful discriminatory motives.
To prevail in a disparate treatment claim, complainant must satisfy the
three-part evidentiary scheme fashioned by the Supreme Court in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973). He must generally establish
a prima facie case by demonstrating that he was subjected to an adverse
employment action under circumstances that would support an inference
of discrimination. Furnco Construction Co. v. Waters, 438 U.S. 567,
576 (1978).
The prima facie inquiry may be dispensed with because the agency
articulated legitimate and nondiscriminatory reasons for its conduct.
See United States Postal Service Board of Governors v. Aikens, 460
U.S. 711, 713-17 (1983); Holley v. Department of Veterans Affairs,
EEOC Request No. 05950842 (November 13, 1997). To ultimately prevail,
complainant must prove, by a preponderance of the evidence, that the
agency's explanation is a pretext for discrimination. Reeves v. Sanderson
Plumbing Products, Inc., 530 U.S. 133, 143 (2000); St. Mary's Honor
Center v. Hicks, 509 U.S. 502, 519 (1993); Texas Department of Community
Affairs v. Burdine, 450 U.S. 248, 256 (1981); Holley v. Department of
Veterans Affairs, EEOC Request No. 05950842 (November 13, 1997); Pavelka
v. Department of the Navy, EEOC Request No. 05950351 (December 14, 1995).
Assuming, arguendo, that complainant established prima facie cases of
discrimination on the bases of race and reprisal, the Commission finds
that the agency articulated legitimate, nondiscriminatory reasons for
not removing the April 15, 2006 letter of warning after the October 5,
2006 arbitrator's decision. First, the October 5, 2006 addressed only
the December 30, 2005 letter of warning and ordered the agency to only
remove the December 30, 2005 letter of warning. Second, on April 30,
2007 a different arbitrator found that the agency had just cause to issue
the April 15, 2006 letter of warning because complainant had sufficient
time since the issuance of the first letter of warning to clarify any
lingering confusion over FMLA leave usage. This arbitrator declined
the union's request to excuse complainant's attendance deficiencies due
to complainant's alleged confusion over FMLA coverage and did not order
the agency to remove the April 15, 2006 letter of warning.
Complainant argues that the agency's reasons for not removing the April
15, 2006 letter of warning were not legitimate because the April 15,
2006 letter of warning was issued under similar circumstances to the
December 30, 2005 letter of warning and should have been similarly
removed for the reasons articulated by the arbitrator in the October
5, 2006 decision. The Commission finds that complainant failed to
demonstrate, by a preponderance of the evidence, that the agency's
failure to remove the April 15, 2006 letter of warning in light of the
April 30, 2007 arbitration decision was a pretext for discrimination on
the bases alleged.
As for the October 30, 2006 seven-day paper suspension, complainant
similarly argues that the agency should have removed the paper suspension
from his record because of the issuance of the October 5, 2006 arbitration
decision in his favor. According to complainant, the agency's failure
to remove the October 30, 2006 paper suspension was motivated by unlawful
discriminatory motives.
Assuming, arguendo, that complainant established prima facie cases of
discrimination on the bases of race and reprisal, the Commission finds
that the agency articulated legitimate, nondiscriminatory reasons for not
removing the October 30, 2006 paper suspension. The record includes a
May 7, 2007 pre-arbitration settlement agreement in which the agency and
union agreed that the agency's October 30, 2006 fourteen-day suspension
of complainant would be served as a seven-day paper suspension, with a
retention date of October 30, 2006. The settlement agreement did not
specify that the seven-day paper suspension would subsequently be removed
from complainant's record. The Commission finds that complainant failed
to demonstrate, by a preponderance of the evidence, that the agency's
explanation was a pretext for discrimination.
Dismissal of Ongoing Harassment Claim
The August 31, 2007 EEO Dispute Resolution Specialist's inquiry report
characterized complainant's allegation of ongoing harassment as starting
in December 2005. In his formal complaint, complainant wrote that a
management official "has been retaliating against me even before I was
issued the December 30, 2005 letter of warning when [another supervisor]
was harassing me." The agency, however, characterized this allegation
as ongoing harassment beginning in December 2006. The Commission finds
that the agency erred in characterizing complainant's ongoing harassment
claim as starting in December 2006, rather than December 2005.
However, the Commission finds that there is sufficient information in
the record to determine whether this allegation of ongoing harassment
beginning in December 2005 was properly dismissed. The record shows that
complainant filed a formal EEO complaint (1A-106-0001-07) on December
1, 2007. However, it appears that complainant did not contact an EEO
counselor about this allegation until June 12, 2007. The Commission
finds that complainant's EEO counselor contact was not timely because
the contact was made beyond the forty-five day limitation period.
Moreover, the Commission has consistently held that a complainant must
act with due diligence in the pursuit of his claim or the doctrine
of laches may apply. See Becker v. United States Postal Serv., EEOC
Appeal No. 01A45028 (November 18, 2004) (finding that the doctrine of
laches applied when complainant waited over two years from the date of
the alleged discriminatory events before contacting an EEO Counselor);
O'Dell v. Department of Health and Human Serv., EEOC Request No. 05901130
(December 27, 1990). The doctrine of laches is an equitable remedy
under which an individual's failure to diligently pursue his course
of action could bar his claim. Here, complainant waited over one and
half years after the alleged incidences of harassment before contacting
an EEO counselor about his concerns. Complainant failed to provide
sufficient justification for extending or tolling the time limit in
light of previously filing an EEO formal complaint in December 2006.
Accordingly, the Commission affirms the agency's ultimate decision to
dismiss this allegation of ongoing harassment.
Other Disparate Treatment Claims
Assuming, arguendo, that complainant established prima facie cases of
discrimination on the bases of race and reprisal, the Commission finds
that the agency articulated legitimate, nondiscriminatory reasons for its
actions, and that complainant failed to show, by a preponderance of the
evidence, that the agency's explanations were pretexts for discrimination,
as discussed below.
Claim 3
For claim 3, complainant alleged that the agency discriminated against him
in that management constantly paged him while he was using the restroom.
The complainant's immediate supervisor and two managers of distribution
operations (MDOs) averred that complainant was paged during these times
because he failed to notify his supervisor of his whereabouts when he
left his work assignment for durations of fifteen to thirty minutes.
The supervisor averred that complainant previously had been instructed
to notify the supervisor when he left his work assignment so that the
supervisor could arrange coverage of the processing machinery during
complainant's absence.
Although complainant argues on appeal that it was typical for employees
to notify each other of their whereabouts whenever management was not
around, and that he was the only one who was paged whenever he and his
colleagues were absent, the Commission finds that complainant failed to
prove, by a preponderance of the evidence, that the agency's explanation
was pretextual.
Claim 4
For claim 4, complainant alleged that he was discriminated against
when the agency frequently moved complainant from his section on
Saturdays and Sundays, and replaced him with temporary casual employees.
Complainant's immediate supervisor averred to reassigning complainant
on several occasions to perform mail and equipment transport tasks
because complainant was qualified to operate industrial power vehicles.
The supervisor averred that reassignments are made on a voluntary or
juniority basis, and several other mailhandlers had more seniority than
complainant. Similarly, the facility's MDO averred that complainant was
moved from his section and within his section when volume and staffing
warranted it. The MDO averred that the moves were done by juniority,
in accordance with the local union agreement.
On appeal, complainant argues that the agency's articulated reason for
moving complainant on the basis of juniority is pretextual because
temporary casual workers are junior to complainant and should have
been moved instead. The Commission finds that even if complainant had
provided relevant agency or union documentation to show the juniority
of temporary casual employees, complainant failed to demonstrate that
the temporary casual workers in question were qualified to perform the
tasks that complainant was moved to perform, such as operating industrial
power vehicles. Therefore, the Commission finds that complainant failed
to show, by a preponderance of the evidence, that the agency's articulated
reasons were pretextual.
Claim 5
For claim 5, complainant alleged that the agency discriminated against him
when it issued an August 2, 2007 notice of a fourteen-day suspension for
failing to be regular in attendance. On appeal, complainant indicates
that he filed a grievance on this matter, and that it eventually went
to arbitration. Complainant attaches to his appellate brief a copy of
the arbitrator's decision on this matter, dated March 3, 2008. In the
arbitration proceeding, complainant argued, as he does in this appeal,
that the agency essentially "manufactured" the two unscheduled absences
in retaliation for his prior EEO activities. According to complainant,
he had verbally requested in advance sick leave for June 21, 2007 and June
22, 2007 from his supervisor. However, his supervisor allegedly forgot
to approve the leave. As a result, the agency charged complainant with
two days of absence without leave and issued the fourteen-day suspension
in retaliation for his prior EEO activities. The arbitrator found that
there was no probative evidence to support complainant's assertions
and determined that the agency had just cause to issue the fourteen-day
suspension.
In the report of investigation, complainant's immediate supervisor averred
that the suspension was issued because complainant had accumulated six
unscheduled absences: two sick days, two incidences of tardiness, and
two incidences of failure to report/absence without leave. The agency
included notices of fourteen-day suspensions for other agency employees,
who had failed to be in regular attendance.
On appeal, complainant argues that the agency's reasons are pretextual
because he had requested sick leave in advance and his supervisor had
assured him that she would "take care of it." Complainant concedes that
he had four unscheduled absences during the relevant time period, but
again maintains that the agency "created" two days of absence without
leave in retaliation for complainant's prior EEO activity.
The Commission finds that complainant failed to prove by a preponderance
of the evidence that the agency's reason for issuing the fourteen-day
suspension was pretext for discrimination. Complainant acknowledges that
there were at least four occurrences of absences during the relevant
time period, and the agency provided examples where the agency issued
fourteen-day suspensions to other employees for similar conduct.
Claim 6
For claim 6, complainant alleges that the agency discriminated against him
when he attempted to provide medical documentation to obtain sick leave
for June 21 and 22, 2007, but the agency did not accept his documentation
and charged him with absence without leave.
Complainant's supervisor averred that, upon complainant's return to work
on June 30, 2007, she asked complainant about his failure to report his
absence on those two days, and informed him that he would be charged
for absence without pay. According to the supervisor, complainant then
responded that he would provide the medical documentation in order to
show his illness on those two days and to receive pay for those absences.
However, the supervisor then informed complainant that an employee must
submit medical documentation in advance to receive approval for sick leave
so that managers could plan for a replacement in the employee's absence.
The supervisor averred that she did not accept the medical documentation
submitted by complainant on July 12, 2007 because it was an untimely
copy of the original doctor's note.
Similar to his assertions in claim 5, complainant argues that he had
requested from his supervisor sick leave prior to his two-day absence,
and she had assured him that she would "take care of it." Whether or not
complainant verbally requested sick leave from his supervisor beforehand
and the supervisor "forgot" to approve his request, complainant does
not appear to dispute the supervisor's contention that sick leave is
approved when medical documentation is submitted in advance,4 and
that complainant did not provide medical documentation before the
two-day absence. Complainant and the supervisor both averred that the
supervisor never advised complainant that he could provide the medical
documentation after his absence and retroactively receive sick leave,
but that complainant voluntarily attempted to provide that documentation
once he was informed that he would be charged with absence without leave.
Therefore, Commission finds that complainant failed to show, by a
preponderance of the evidence, that the agency's reasons were pretexts
for discrimination.
Harassment/Hostile Work Environment Claim
For claim 7, complainant alleged that he was subjected to
harassment/hostile work environment on August 6, 2007 when: (1) his
acting supervisor gave him many different instructions, (2) he asked
the supervisor what she really wanted him to do, (3) the supervisor
told him to get some items, (4) he replied that the relevant area did
not need any more of the specified items, and (5) the supervisor asked
him whether he wanted to "go to the office."
In her affidavit, complainant's acting supervisor (S1) averred that she
was helping to set up some items in an area of the facility when she saw
complainant talking to another employee. According to S1, complainant
continued to converse with the employee for another ten minutes, at
which time S1 asked complainant why he was talking and not helping
to set up the items. Both S1 and complainant averred that he replied
that the area already had enough items, but that he would get around
to performing the task. S1 questioned when complainant would start
because she had observed him talking for ten minutes. S1 averred that
complainant started to perform the task, but then asked the supervisor
why she was harassing him. At that point, S1 averred, she walked away
from complainant.
To establish a claim of harassment based on race or reprisal, complainant
must show that: (1) he is a member of the statutorily protected class;
(2) he was subjected to harassment in the form of unwelcome verbal or
physical conduct involving the protected class; (3) the harassment
complained of was based on the statutorily protected class; and (4)
the harassment affected a term or condition of employment and/or had the
purpose or effect of unreasonably interfering with the work environment
and/or creating an intimidating, hostile, or offensive work environment.
Humphrey v. United States Postal Service, EEOC Appeal No. 01965238
(October 16, 1998); 29 C.F.R. � 1604.11. The harasser's conduct should
be evaluated from the objective viewpoint of a reasonable person in
the victim's circumstances. Enforcement Guidance on Harris v. Forklift
Systems, Inc., EEOC Notice No. 915.002 (March 8, 1994).
Further, the incidents must have been "sufficiently severe and pervasive
to alter the conditions of complainant's employment and create an abusive
working environment." Harris v. Forklift Systems, Inc., 510 U.S. 17, 21
(1993); see also Oncale v. Sundowner Offshore Services, Inc., 23 U.S. 75
(1998). In the case of harassment by a supervisor, complainant must
also show that there is a basis for imputing liability to the employer.
See Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982).
After reviewing the record, the Commission finds that complainant failed
to establish a claim of harassment/hostile work environment because the
verbal exchange alleged by complainant was not sufficiently severe or
pervasive to alter the conditions of complainant's employment and create
an abusive working environment. S1's inquiries, observations, and orders
that day related to the ordinary activity of supervising a subordinate
in performing a task, and there is no indication that S1's verbal conduct
involved complainant's membership in a statutorily protected class.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, the Commission affirms
the agency's final decision, finding that complainant failed to prove
discrimination as alleged.5
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
November 30, 2009
Date
1 It is noted that the agency's decision was erroneously dated February
13, 2007.
2 In its final decision, the agency states the date of the complaint as
August 23, 2007.
3 In his formal complainant, complainant wrote that the agency issued
a seven-day paper suspension on April 15, 2006. In the same paragraph,
complainant also wrote about being "put out of work" for fourteen days
on October 30, 2006 and requested that "those actions" be removed from
his record as soon as possible. The Commission presumes that complainant
intended to refer to the April 15, 2006 letter of warning and the October
30, 2006 seven-day paper suspension.
4 Attached to complainant's appellate brief is a copy of the agency's
regulations governing advance sick leave, which provide that "[e]very
application for advance sick leave must be supported by medical
documentation as to illness."
5 On April 11, 2008, complainant raised a new issue and sought amendment
to his complainant concerning his April 4, 2008 emergency placement in an
off-duty status. The Commission has held that it is not appropriate for a
complainant to raise new claims for the first time on appeal. See Hubbard
v. Department of Homeland Security, EEOC Appeal No. 01A40449 (April
22, 2004). Should complainant wish to pursue this claim, complainant is
advised to contact an EEO counselor to begin the administrative process.
For timeliness purposes, the date of initial contact will be deemed
to be April 11, 2008, unless it is established that complainant sought
counseling earlier.
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0120081891
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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