0120092058
10-05-2009
Christopher A. Ondrovic, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security, Agency.
Christopher A. Ondrovic,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 0120092058
Hearing No. 440-2008-00076X
Agency No. HS08CBP001797
DECISION
On April 13, 2009, complainant filed an appeal from the agency's March 31, 2009 final decision concerning his equal employment opportunity (EEO) complaint alleging employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq. The appeal is deemed timely and is accepted for the Commission's de novo review pursuant to 29 C.F.R. � 1614.405(a). For the following reasons, the Commission AFFIRMS the agency's final decision.
BACKGROUND
Complainant began working for the agency's Transportation Security Administration (TSA) in 2002 and in December 2005, received an excepted service appointment under the Federal Career Internship Program (FCIP). The FCIP enables agencies to recruit for trainee positions using time-limited appointments in the excepted service under a Schedule B hiring authority. The FCIP requires an appointee to serve a two-year internship before the appointee can become eligible for conversion to "career or career conditional" status. As a result of this appointment, complainant became a Customs Border Patrol Officer, and at the time of events giving rise to this complaint, he was working at O'Hare International Airport in Chicago, Illinois.
On November 9, 2006, complainant fell at work and apparently aggravated a prior herniated disc. Complainant began to suffer significant back pain but attempted to remain working because of what he termed his "probationary" status. However, on April 24, 2007, his treating physician recommended that he not return to work until he could complete physical therapy. Complainant alleges that the Office of Workers Compensation Programs (OWCP) delayed his treatment for several months, but that he was eventually able to complete physical therapy and could have returned to work if the agency had not terminated his appointment on September 12, 2007, for excessive absence and inability to perform the full range of his duties.
On December 27, 2007, complainant filed the instant EEO complaint. Therein, complainant claimed that he was discriminated against on the basis of disability when:
(1) the agency terminated him; and
(2) the agency denied his request for reinstatement.
At the conclusion of the investigation of claim (2), 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). Complainant timely requested a hearing but subsequently withdrew his request. Consequently, the agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b).
In its decision, the agency dismissed the termination claim on the grounds of untimely EEO Counselor contact. Specifically, the agency found that although complainant did make timely EEO Counselor contact in October 2007, he did not do so with the intent to file a formal complaint, but rather to inquire about the process. The agency found that complainant's desired remedy was to get his job back and that complainant concluded that the best way to pursue that remedy was to request reinstatement as opposed to filing an EEO complaint. When the reinstatement request was denied in December 2007, complainant then contacted an EEO Counselor to file the instant complaint. The agency concluded that the December 2007 EEO Counselor contact was well beyond the 45 days from the effective date of his termination in September but that the reinstatement denial was well within the timeframe and thus appropriate for investigation.
The agency then concluded that complainant failed to prove that he was subjected to discrimination when his request for reinstatement was denied. Specifically the agency relied on 5 C.F.R. � 353.103(b) for its finding that complainant did not have reinstatement rights following recovery from a compensable injury because he held a time-limited appointment with a not-to-exceed date. The agency explained that this regulatory rule was the basis for its denial. However, the basis for the agency's conclusion that complainant was not discriminated against was its finding that he was not entitled to coverage under the Rehabilitation Act because he was not an "individual with a disability."
CONTENTIONS ON APPEAL
On appeal, complainant argues that the agency's rationale for the procedural dismissal of his termination claim is flawed because he did contact an EEO Counselor within the proscribed timeframe and that the agency admits this. Complainant also argues that some district courts have held that when a current position is similar to a prior government position held, the probationary period is only one year. Complainant believes that his position at TSA was similar enough to his Customs Border Patrol Officer position to warrant some sort of waiver of his status as an individual with a time-limited appointment.
In its response to complainant's appeal, the agency argues in significant detail that complainant did not intend to seek EEO counseling in October 2007. The agency relies on both the contemporaneous record of the contact created by the EEO Manager and complainant's own admission that he did not need to proceed with an EEO claim because there were other avenues of relief available to him. The agency also addresses complainant's argument that he should only be held to a one-year probationary period. The agency explains that complainant has confused the standards for determining whether a person is an "employee" eligible to appeal an adverse action to the Merits Systems Protection Board with "entirely unrelated" regulations governing OWCP. The agency also argues that complainant's TSA position was substantially different from his "firearms-carrying law enforcement" position as a Customs Border Patrol Officer.
ANALYSIS AND FINDINGS
Turning our attention first to the termination claim, the Commission must make a factual finding, based on the evidence of record, as to what complainant's intent was when he contacted the EEO Manager in October 2007. Having reviewed all of the evidence, we find that the preponderance of it supports the agency's argument that complainant did not contact the EEO manager with the intent to seek counseling and commence the EEO process. The evidence indicates that complainant was seeking information about the EEO process but that he believed the most appropriate thing for him to do at that juncture was to request reinstatement, and the evidence proves that he did just that, the denial of which returned him to the EEO Office. In addition, there is no evidence that the EEO Manager took any further action after the October 2007 contact, such as providing complainant with notice of his rights and responsibilities, that would suggest complainant had communicated his intent to seek counseling. Finally, even if complainant believed that by contacting the EEO Manager, his time limit for seeking counseling would be tolled while he pursued other means of redress, the Commission has held otherwise. In order to toll the time limit, complainant needed to seek counseling and communicate his intent to commence the EEO process. We find that complainant did not do so until December 2007. Accordingly, we conclude that the agency dismissal's of the termination claim was correct. See 29 C.F.R. �1614.107(2).
Regarding the denial of complainant's request for reinstatement, even if we assume arguendo that complainant established a prima facie case of disability based discrimination, he did not present evidence sufficient to overcome the agency's explanation for its decision. The agency relied on regulatory authority stating that in order to be eligible for reinstatement after recovery from a compensable injury, an employee had to have held an "appointment without time limitation." There is no question that complainant held a not-to-exceed two year appointment in the FCIP. Even if the agency's reliance on this authority was wrong (and complainant has not shown that it was), there is no evidence in the record to establish that it was disability based bias, as opposed to regulatory authority, that motivated the agency's decision to deny reinstatement. We do note that if complainant had entered the FCIP from a career or career conditional position with the Customs Border Patrol, he may have had a right to return to that position or to a somewhat equivalent position with the Customs Border Patrol upon failing to complete the FCIP appointment. However, because complainant was a TSA employee prior to the FCIP appointment, he has no right to further placement in the Customs Border Patrol.
While the Commission is sympathetic to complainant's situation, especially in light of evidence that he may have recovered sufficiently to return to work and perform the full range of his duties, it is not our role to disturb the agency's personnel decision absent proof, by a preponderance of the evidence, that it was illegally motivated in violation of the Rehabilitation Act.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, we AFFIRM both the agency's procedural dismissal of complainant's termination and its conclusion that it did not violate the Rehabilitation Act when it denied his request for reinstatement.
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
October 5, 2009
__________________
Date
2
0120092058
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013