0120122994
12-20-2012
Eric M. Duke, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security (Customs and Border Protection), Agency.
Eric M. Duke,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security
(Customs and Border Protection),
Agency.
Appeal No. 0120122994
Agency No. HS-CBP-22065-2012
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated June 20, 2012, dismissing his complaint of unlawful employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Customs Border Patrol Officer at the Agency's Alcan Port of Entry facility in Anchorage, Alaska.
The record indicated that Complainant was issued a Memorandum of Instruction on January 12, 2012, regarding his usage of sick leave. The Memorandum noted that, due to Complainant's use of sick leave during the holiday season, he would be required to provide the Agency with medical certificates for use of any sick leave. (emphasis in original) The Memorandum indicated that the Collective Bargaining Agreement provided for employees to provide medical documentation for use of sick leave in excess of three days.
The record indicated that Complainant contacted the EEO Counselor on February 28, 2012. When the matter was not resolved informally, Complainant was issued a Notice of Right to File a Formal Complaint. On April 10, 2012, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of disability and reprisal for his union activity when, on January 12, 2012, Complainant received a letter of counseling for sick leave abuse.
The Agency asked Complainant to explain for his delay in contacting the EEO Counselor. The Agency informed Complainant that he contacted the EEO Counselor two days after the 45 day time limit. Complainant responded that he was not aware of the 45 day time limit. He stated that he had contacted the Office of Special Counsel as well as his Congressman. It was only after communicating with these entities; he was made aware of the 45 day time limit. Therefore, Complainant asked that the 45 day time limit be extended.
The Agency dismissed the complaint pursuant to 29 C.F.R. �1614.107(a)(2). The Agency noted that Complainant was issued the Memorandum on January 12, 2012. Therefore, for Complainant's contact to have been timely, he needed to contact the Agency by February 26, 2012. The Agency indicated that Complainant initiated contact on February 28, 2012. The Agency also provided that Complainant should have been aware of the 45 day time limit. The Agency showed that Complainant had attended EEO Training on February 8, 2008; during which he was provided with a slide show presentation which had a slide on the time frames. As such, the Agency found that Complainant should have been aware of the time frames.
Further, the Agency noted that Complainant alleged discrimination on the basis of reprisal for his union activity. The Agency dismissed this basis pursuant to 29 C.F.R. �1614.107(a)(1) for failure to state a claim.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.107(a)(2) states that the Agency shall dismiss a complaint or a portion of a complaint that fails to comply with the applicable time limits contained in �1614.105, �1614.106 and �1614.204(c), unless the Agency extends the time limits in accordance with �1614.604(c).
EEOC Regulation 29 C.F.R. �1614.105(a)(1) provides that an aggrieved person must initiate contact with an EEO Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within 45 days of the effective date of the action. EEOC Regulation 29 C.F.R. �1614.105(a)(2) allows the Agency or the Commission to extend the time limit if Complainant can establish that Complainant was not aware of the time limit, Complainant did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence Complainant was prevented by circumstances beyond his control from contacting the EEO Counselor within the time limit, or for other reasons considered sufficient by the Agency or Commission.
On appeal, Complainant asserted that he was not aware of the discrimination until five days after he received the Memorandum. At that time, he noticed that non-disabled employees were permitted to take sick leave in conjunction with holidays and their scheduled days off. As such, he realized that he was being discriminated five days after he received the Memorandum. Therefore, his contact on February 28, 2012, was within the 45 calendar days. We note that Complainant did not challenge the Agency's final decision finding that Complainant received training.
Upon review, we are not persuaded by Complainant that the time frame should have been extended. As noted above, Complainant received the Memorandum which clearly noted that he was required to provide medical certificate for any use of sick leave. The Memorandum provided the Agency's standard requirement for providing medical certificates and stated that Complainant had a different requirement. As such, he should have been aware of alleged discrimination at the time he was issued the Memorandum on January 12, 2012. Therefore, to be considered timely raised, Complainant needed to contact the EEO Counselor by February 27, 2012.1 Complainant failed to contact the EEO Counselor by February 27, 2012. As such, we find that the complaint was properly dismissed pursuant to 29 C.F.R. �1614.107(a)(2).2
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 (S0610)
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 (Z0610)
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
December 20, 2012
__________________
Date
1 We note that the 45th day would have been February 26, 2012, which was a Sunday. Therefore, the next business day was February 27, 2012.
2 Since we have affirmed the Agency's dismissal pursuant to 29 C.F.R. �1614.107(a)(2), there is no need to address the Agency's other dismissal bases.
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0120122994
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120122994