0120092046
08-19-2009
Frank Cerisano, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Frank Cerisano,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120092046
Agency No. 4A110005909
DECISION
Complainant filed a timely appeal with this Commission from the
agency's decision dated March 20, 2009, 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. In his complaint, complainant alleged that he was subjected
to discrimination on the basis of disability (back) when:
1. On or about January 2001, complainant was not given an upgrade from
Level 6 to Level 7, and
2. On or about January 2009, complainant was denied an upgrade from
Level 8 to Level 9.
The agency dismissed claim 1 as untimely in accordance with EEOC
Regulation 29 C.F.R. � 1614.107(a)(2). Specifically, the agency found
that complainant's EEO contact on February 4, 2009 regarding alleged
agency conduct in January 2001, was well beyond the applicable time
limit for counselor contact. The agency dismissed claim 2 for failure
to state a claim pursuant to EEOC Regulation 29 C.F.R. � 1614.107(a)(1).
The agency found that complainant's claim that he failed in 2009 to
receive an upgrade from Level 8 to Level 9 was part of a grievance
settlement through the agency's negotiated grievance procedure.
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 properly dismissed
claim 1 as untimely. The record indicates that an EEO poster containing
relevant EEO time limitations was posted at complainant's work site.
In addition, the Commission notes that complainant has not alleged
that he was unaware of the time limits for counselor contact, or was he
prevented for any reason for seeking timely EEO contact. In that regard,
the Commission finds that the agency's dismissal of claim 1 as untimely
was proper.
In its final decision, the agency indicates that claim 2 specifically
refers to a grievance settlement between the agency and the union.
Complainant alleges that he never received the upgrade in pay as
provided in the grievance settlement. The agency found that, in
accordance with EEOC regulations, claim 2 was a collateral attack on
the grievance process.
A fair reading of the complaint indicates that complainant is
asserting that he was entitled to the pay upgrade as part of the
grievance settlement. However, whether or not he was a beneficiary of
that settlement is more properly adjudicated in the grievance process
rather than the EEO complaint process. The Commission has held that
an employee cannot use the EEO complaint process to lodge a collateral
attack on another proceeding. See Wills v. Department of Defense, EEOC
Request No. 05970596 (July 30, 1998); Kleinman v. United States Postal
Service, EEOC Request No. 05940585 (September 22, 1994); Lingad v.
United States Postal Service, EEOC Request No. 05930106 (June 25, 1993).
In viewing this complaint in the light most favorable to complainant, the
Commission finds that the proper forum for complainant to have raised his
challenges to the grievance settlement is within that proceeding itself.
To the extent that complainant is alleging that the agency is violating
a settlement agreement within the grievance process, the Commission will
not adjudicate such matters.
Accordingly, the agency's decision dismissing complainant's complaint
is hereby affirmed for the reasons set forth herein.
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
August 19, 2009
_______________
Date
2
0120092046
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
4
0120092046