0120082949
10-28-2009
Delfim Fraguerio, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (New York Metro Area), Agency.
Delfim Fraguerio,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(New York Metro Area),
Agency.
Appeal No. 0120082949
Agency No. 4A070001508
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's June 10, 2008 final decision 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. and Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
Complainant sought EEO counseling on October 24, 2007 and subsequently
filed a formal complaint on January 31, 2008, alleging that the
agency discriminated against him on the bases of race (unspecified)
and disability (deaf) when beginning on or about September 1, 2007,
complainant's work schedule and job duties were altered and he has been
denied overtime.
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 pursuant to 29
C.F.R. � 1614.1110(b) concluding that complainant failed to prove that
he was subjected to discrimination as alleged and that his claim in part,
was untimely.
In its final decision, the agency dismissed complainant's work schedule
claim as untimely in accordance with EEOC Regulation 29 C.F.R. �
1614.107(a)(1). The agency indicated that complainant first learned in a
letter from the agency dated March 28, 2007 that his work schedule would
be altered. Consequently, the agency's final decision determined that
complainant's October 24, 2007 contact of an EEO Counselor regarding
the schedule change in March 2007 was untimely.
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the Equal Employment
Opportunity Counselor within forty-five (45) days of the date of the
matter alleged to be discriminatory or, in the case of a personnel
action, within forty-five (45) days of the effective date of the action.
The Commission has adopted a "reasonable suspicion" standard (as opposed
to a "supportive facts" standard) to determine when the forty-five (45)
day limitation period is triggered. See Howard v. Department of the Navy,
EEOC Request No. 05970852 (February 11, 1999). Thus, the time limitation
is not triggered until a complainant reasonably suspects discrimination,
but before all the facts that support a charge of discrimination have
become apparent.
EEOC Regulations provide that the agency or the Commission shall extend
the time limits when the individual shows that he was not notified of the
time limits and was not otherwise aware of them, that he did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence he was prevented
by circumstances beyond his control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
Upon review, the Commission finds that the agency's dismissal of
complainant's work schedule claim as untimely, was proper. The record
contains a copy of a letter dated March 28, 2007 advising complainant
of the change in his duty hours. Complainant has does not indicate that
he was unaware of the time limitations regarding EEO contact or that he
was prevented for any reason from timely contacting an EEO Counselor.
On appeal, complainant has presented no persuasive arguments or evidence
warranting an extension of the time limit for initiating EEO Counselor
contact regarding the change in his work schedule.
Regarding complainant's claim that he was denied overtime, the
agency found that complainant failed to establish a prima facie case
of discrimination on any alleged basis. The agency further determined
that even assuming, arguendo, that complainant established a prima facie
case, the agency proffered legitimate non-discriminatory reasons for
its actions and that complainant failed to establish that the agency's
reason was a pretext for discrimination.
To prevail in a disparate treatment claim such as this, 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 in this case, however, since the agency has 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, 120 S.Ct. 2097 (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).
The Commission determined that the agency established a legitimate,
non-discriminatory reason for its alleged conduct. Specifically, the
agency provides the Commission with copies of overtime records indicating
that complainant worked a total of 112.17 hours of overtime during the
period September 1, 2007 through March 14, 2008. The agency indicates
in its final decision that other than his bare assertion, complainant
failed to provide specific dates on which he alleges he was denied the
opportunity to work overtime hours. Moreover, the agency maintains that
decisions regarding overtime are at the discretion of supervising agency
officials based on particular operational needs at the time. The agency
found that complainant failed to demonstrate that the agency's decisions
regarding overtime resulted in complainant suffering any adverse action
nor did he demonstrate that the agency's alleged conduct was based
on any discriminatory animus toward complainant's protected classes.
The Commission further finds that complainant failed to present evidence
that more likely than not, the agency's articulated reasons for its
actions were a pretext for discrimination.
Finally, the Commission notes that on appeal, complainant indicates that
he wishes to file a new complaint regarding the agency's alleged denial
of an interpreter in violation of a prior settlement agreement.1 In
addition to complainant's statement on appeal, the record discloses that
complainant repeatedly raises the issue of the agency's failure to provide
him with an interpreter. The report of the EEO Counselor indicates that
on January 2, 2008, complainant "complained that he was having a hard
time understanding the American Sign Language interpreter." In other
correspondence supplied by complainant and attached to the counselor's
report, he states that because he is deaf, he does not always "catch on
every minute as to what is happening."
Irrespective of whether complainant alleges that the agency's failure
to provide an interpreter is a violation of a settlement agreement, the
Commission notes that the agency is required to provide complainant with
a reasonable accommodation; in this case, an interpreter. The record
clearly indicates that complainant advised the agency of his need for
an accommodation. Because the agency fails to address complainant's
concerns regarding an interpreter in this matter, the Commission will
remand this issue to the agency in accordance with EEOC Regulations.
The agency's decision in this matter regarding complainant's work
schedule and overtime claims is affirmed. However, as discussed above,
and based on a fair reading of the record herein, the Commission finds
that complainant has alleged that the agency has failed to provide him
with a reasonable accommodation. As such, the Commission will remand
this issue to the agency for processing in accordance with this decision
and the Order below. Accordingly, the agency's decision in this matter
is affirmed in part, reversed in part and remanded.
ORDER (E0408)
The agency is ordered to process the remanded claim (failure to
accommodate - sign language interpreter) in accordance with 29 C.F.R. �
1614.108 et seq. The agency shall acknowledge to the complainant that
it has received the remanded claims within thirty (30) calendar days
of the date this decision becomes final. The agency shall issue to
complainant a copy of the investigative file and also shall notify
complainant of the appropriate rights within one hundred fifty (150)
calendar days of the date this decision becomes final, unless the matter
is otherwise resolved prior to that time. If the complainant requests a
final decision without a hearing, the agency shall issue a final decision
within sixty (60) days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0408)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (T0408)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. In the alternative, you may file a civil action after
one hundred and eighty (180) calendar days of the date you filed your
complaint with the agency, or your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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 28, 2009
__________________
Date
1 The record contains a copy of an agreement between the parties executed
on February 6, 2007 in part obligating the agency to provide complainant
with an interpreter.
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0120082949
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
6
0120082949