01984938
10-05-1999
Douglas C. Liberato v. United States Postal Service
01984938
October 5, 1999
Douglas C. Liberato, )
Appellant, )
)
v. ) Appeal No. 01984938
) Agency No. 1-F-904-0019-98
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
On June 3, 1998, appellant filed a timely appeal with this Commission
from a final agency decision (FAD) received by him on May 27, 1998,
pertaining to his complaint of unlawful employment discrimination in
violation of Title VII of the Civil Rights Act of 1964, as amended, 42
U.S.C. �2000e et seq., �501 of the Rehabilitation Act of 1973, 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. In his complaint,
appellant alleged that he was subjected to discrimination on the bases
of race (Caucasian), color (white), national origin (Italian), gender
(male), age (date of birth January 25, 1943), physical disability (heart
condition), mental disability (possible brain damage), and in reprisal
for prior EEO activity when in 1992, postal medical officers failed to
identify all of appellant's mental and physical disabilities.
The agency dismissed appellant's complaint pursuant to EEOC Regulation
29 C.F.R. �1614.107(a), for failure to state a claim. Alternatively,
the agency dismissed the complaint pursuant to EEOC Regulation 29
C.F.R. �1614.107(b), for untimely counselor contact. Specifically, the
agency found that appellant initially contacted a counselor on December
19, 1997, approximately 2,499 days after the requisite forty-five (45)
day time limitation for counselor contact expired.
On appeal, appellant makes numerous arguments relating to an alleged
conspiracy under which appellant claims to have been mistreated from 1988
through 1998. Appellant claims that his impairments, not recognized by
the agency, rendered appellant incompetent, and unable to perform his job
without accommodation. Appellant contends that he was forced to take a
disability retirement, approved on July 7, 1997, and has since repeatedly
attempted to gain reinstatement, provided he is given accommodation for
his disability. Appellant also refers to his many other EEO complaints,
grievances, workers' compensation claims, complaints to the Medical
Board of California, and letters to the FBI and Justice Department.
In response, the agency notes that appellant continued to serve in his
position until his retirement in 1997, long after his initial contact
with agency physicians in 1991. The agency argues that appellant has
not suffered any unresolved harm, and also is no longer an employee and
therefore not covered by the EEO process.
The Commission finds that the agency has improperly defined appellant's
complaint. Appellant contends that despite his repeated requests for
help and letters concerning his physical and mental impairments, the
agency failed to accommodate his disabilities. Therefore, the agency
finds that appellant's allegation should be defined as whether appellant
was subjected to discrimination from 1992 through 1997, when the agency
failed to provide him with accommodation on an on-going basis.
EEOC Regulation 29 C.F.R. �1614.107(a) provides, in relevant part, that
an agency shall dismiss a complaint, or portion thereof, that fails to
state a claim. An agency shall accept a complaint from any aggrieved
employee or applicant for employment who believes that he or she has been
discriminated against by that agency because of race, color, religion,
sex, national origin, age or disabling condition. 29 C.F.R. �1614.103;
�1614.106(a). The Commission's federal sector case precedent has long
defined an "aggrieved employee" as one who suffers a present harm or loss
with respect to a term, condition, or privilege of employment for which
there is a remedy. Diaz v. Department of the Air Force, EEOC Request
No. 05931049 (April 21, 1994).
Appellant was an employee of the agency, and is currently a retiree on the
agency's disability retirement plan. Therefore, appellant is covered
by EEOC Regulations. Once properly defined, appellant's complaint
clearly states a claim affecting a term, condition, or privilege of
employment. See Bicknell v. United States Postal Service, EEOC Appeal
No. 01970417 (Nov. 7, 1997) (denial of accommodations, once properly
defined, states a claim); Guajardo v. Department of Agriculture, EEOC
Appeal No. 01963770 (Apr. 15, 1997). Further, the agency's argument
that appellant was able to perform his job as evidenced by his continued
performance from 1991 through 1997 reaches the merits of appellant's
complaint without an investigation as required by EEOC Regulations.
Appellant's continued performance is irrelevant to the procedural issue of
whether he has stated a justiciable claim under Title VII. See Osborne
v. Department of the Treasury, EEOC Request No. 05960111 (July 19,
1996); Lee v. United States Postal Service, EEOC Request No. 05930220
(Aug. 12, 1993); Ferrazzoli v. United States Postal Service, EEOC Request
No. 05910642 (Aug. 15, 1991).
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 Ball v. United
States Postal Service, EEOC Request No. 05880247 (July 6, 1988). Thus,
the limitations period 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.
"The Commission has held that a failure to provide a reasonable
accommodation may constitute a recurring violation, that is, a violation
that recurs anew each day that the agency failed to provide appellant
with a reasonable accommodation." Alphonso v. United States Postal
Service, EEOC Appeal No. 01981505 (citing Mitchell v. Department of
Commerce, EEOC Appeal No. 01934120 (Mar. 4, 1994)); Meacham v. Treasury,
EEOC Appeal No. 01982192 ( Mar. 24, 1999). Here, the agency's alleged
violation recurred each day that it failed to provide appellant with a
reasonable accommodation; however, appellant retired from the agency on
July 7, 1997. Therefore, we find that appellant should have initiated
EEO contact within forty-five (45) days of the date of his retirement
at the latest. Consequently, appellant's contact with an EEO Counselor
on December 19, 1997, was untimely.
CONCLUSION
Accordingly, the agency's dismissal is AFFIRMED for the reasons set
forth herein.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
October 5, 1999
__________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations