0120080504
08-13-2009
James F. Tatro, Complainant, v. Janet Napolitano, Secretary, Department of Homeland Security, (Transportation Security Administration), Agency.
James F. Tatro,
Complainant,
v.
Janet Napolitano,
Secretary,
Department of Homeland Security,
(Transportation Security Administration),
Agency.
Appeal No. 0120080504
Agency No. HS07TSA000890
DECISION
Complainant filed a timely appeal with this Commission from the
agency's decision dated September 28, 2007, 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 (neck injury) when:
(1) On July 1, 2005, complainant received a letter instructing him to
return to work in a limited duty position or forfeit his U.S. Department
of Labor (DOL) Workers' Compensation benefits.
(2) On May 8, 2006, complainant received a letter from TSA Human
Resources (HR) instructing him to return to regular duty, and notifying
him that his "permanent" limited duty position was no longer available.
(3) On May 13, 2006, complainant was referred back to DOL and placed
on Leave Without Pay status.
(4) On November 11, 2006, complainant learned that his DOL Workers'
Compensation benefits were discontinued.
Upon review, the Commission finds that issues (1), (2) and (3) were
properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely
EEO Counselor contact. In so finding, we note the following: the record
discloses that the alleged discriminatory events occurred on July 1,
2005, May 8, 2006 and May 13, 2006, but complainant did not initiate
contact with an EEO Counselor until November 6, 2006, which is beyond the
forty-five (45) day limitation period. On appeal, complainant asserts:
The fact remains that while Complainant was aware of the 45 day period
within which to file an EEO grievance, the reality is that until
Complainant talked with a lawyer, they did not know they had a Title
VII claim within which to file or act on. The record will indicate that
Complainant did file within said 45 day period of discovering that they
had a claim.
Complainant further suggests that the vital question is: when did
complainant believe that he had a complaint? This is not, however,
a correct articulation of the standard that the Commission applies.
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 triggered when a complainant reasonably suspects discrimination,
but before all the facts that support a charge of discrimination have
become apparent.
Although complainant asserts that he did not believe he had "a complaint"
until he spoke with his attorney, he has not demonstrated that until
he spoke with his attorney he had no reason to suspect discrimination.
In fact, we find it likely that complainant suspected discrimination
before speaking with his attorney which is what led him to seek the
assistance of counsel. The Commission discerns no argument or evidence
warranting an extension of the time limit for initiating EEO Counselor
contact. Accordingly, the agency's final decision dismissing claims (1),
(2) and (3), is affirmed.
The FAD dated September 28, 2007 dismissed issue (4) for failure to
state a claim. Specifically, the FAD found that a decision by DOL to
cease benefits is not a matter covered by Title 29 C.F.R., Part 1614,
and therefore is not an EEO matter. In accordance with 29 C.F.R. �
1614.107(a)(1), the FAD dismissed the fourth claim. On appeal,
complainant contends that this is not a typical case of termination of
benefits as complainant's "benefits were to ceased in September of 2006
as part of a third-party settlement that occurred with Complainant's
injury of January 13th, 2003, found as US Dept. of Labor - Office of
Workers' Compensation Programs File # 132074478." Complainant further
asserts that the fundamental issue has not been addressed, which is that
"a number of recovering injured employees, including complainant, were
given 'PERMANENT' Limited Duty positions/assignments and within a short
time, said positions/duties were literally taken away."
The Commission finds that claim (4) was properly dismissed pursuant to 29
C.F.R. � 1614.107(a)(1). 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). Here, complainant's claim
(4) concerns the DOL's decision to discontinue complainant's benefits.
After a careful review of the record, the Commission finds that claim
(4) is an impermissible collateral attack on the workers' compensation
benefits program administered by DOL.
Accordingly, we AFFIRM the FAD.
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
________8/13/09__________
Date
2
0120080504
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
4
0120080504