Jerry E. Davis, Complainant,v.John E. Potter, Postmaster General, United States Postal Service (Headquarters), Agency.

Equal Employment Opportunity CommissionAug 7, 2009
0120083786 (E.E.O.C. Aug. 7, 2009)

0120083786

08-07-2009

Jerry E. Davis, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Headquarters), Agency.


Jerry E. Davis,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service

(Headquarters),

Agency.

Appeal No. 0120083786

Hearing No. 550-2008-00287X

Agency No. 6F-000-0011-05

DECISION

On August 26, 2008, complainant filed an appeal from the agency's August

7, 2008 final order 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation

Act), 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.

The appeal is deemed timely and is accepted pursuant to 29 C.F.R. �

1614.405(a). For the following reasons, the Commission AFFIRMS the

agency's final order.

ISSUES PRESENTED

The issues presented are: (1) whether the EEOC Administrative Judge's

(AJ) dismissal of complainant's complaint for untimely EEO Counselor

contact was appropriate; (2) whether the EEOC Administrative Judge's (AJ)

issuance of a decision without a hearing on the merits of the complaint

was appropriate; and (3) whether complainant established that he was

subjected to disparate treatment.

BACKGROUND

At the time of the events giving rise to this complaint, complainant

worked as a Computer Systems Analyst/Programmer Associate at the agency's

San Mateo Integrated Business Systems Solution Center in San Mateo,

California. On August 17, 2005, complainant filed an EEO complaint

alleging, in pertinent part, that he was subjected to discrimination on

the bases of race (Caucasian), national origin (Jewish), sex (male),

religion (Jewish), color (White), disability (Adult Attention Deficit

Disorder and Sleep Apnea), age (51 at the time of the alleged incidents),

and in reprisal for prior protected EEO activity arising under the

Rehabilitation Act when, on May 12, 2003, May 23, 2003, and September 8,

2004, his medical information was disclosed.1

On September 2, 2005, the agency issued a Notice of Partial

Acceptance/Partial Dismissal of Formal EEO Complaint dismissing

the aforementioned claim for failure to state a claim pursuant to 29

C.F.R. � 1614.107(a)(1). On appeal, the Commission reversed the agency's

dismissal, finding that "[t]he claim of breach of confidentiality of

complainant's medical information by the agency states a claim because

if proven, this would likely violate the Rehabilitation Act's medical

information confidentiality requirements." Davis v. United States

Postal Service, EEOC Appeal Nos. 0120062330, 0120071292 (February 5,

2008).2 The Commission further found that the record was inadequately

developed to address this claim and remanded the claim back to the agency

for further processing in accordance with 29 C.F.R. � 1614.108. Id.

On remand, at the conclusion of the investigation, complainant was

provided with a copy of the report of investigation and a notice of his

right to request a hearing before an AJ. Complainant timely requested

a hearing. The AJ assigned to the case determined sua sponte that the

complaint did not warrant a hearing and, on July 11, 2008, issued a Notice

of Intent to Consider Issuance of a Decision Without a Hearing and Order.

On July 31, 2008, after receiving responses from both complainant and

the agency, the AJ issued an Order of Dismissal or, in the alternative,

Decision Granting Summary Judgment. The AJ's decision dismissed the

complaint for untimely EEO Counselor contact, and, assuming arguendo

the claim was timely, the AJ found that complainant failed to establish

that a violation of the Rehabilitation Act had occurred. The agency

subsequently issued a final order fully adopting the AJ's decision.

CONTENTIONS ON APPEAL

On appeal, complainant states that the timeliness of his multiple

complaints "is a matter of continuing tort." He argues that he had

called the agency regarding his complaints "a number of times," and he

was "[led] to believe that [his] complaints were acceptable by phone."

Complainant also argues that the AJ erred in finding no discrimination.

Specifically, he argues that the AJ failed to consider retaliation as

a basis for his claim and improperly denied his request for additional

discovery. He argues that further discovery was necessary to "show

the glaring imbalances of Asian hires and promotions as opposed to

the obvious lack of Caucasian promotions" and establish that the agency

subjected him to disparate treatment. Complainant states that the agency

repeatedly violated Title VII, the Rehabilitation Act, and the ADEA, and

agency officials denied him a reasonable accommodation despite having

sufficient medical documentation to assess his limitations. Finally,

complainant proposes a list of potential remedies he believes he is

entitled to in order to settle his EEO complaint.

In response, the agency urges the Commission to affirm its final decision.

The agency argues that the AJ properly dismissed the complaint for

untimely EEO Counselor contact. The agency also argues that there was no

evidence that agency officials made improper disclosures of complainant's

confidential medical information, and any additional discovery would not

have provided complainant with evidence to establish a violation of the

Rehabilitation Act.

ANALYSIS AND FINDINGS

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. McLouglin v. Department of the Treasury, EEOC Request

No. 05A01093 (April 24, 2003).

The Commission finds that complainant should have reasonably suspected

that discrimination occurred when agency officials allegedly disclosed his

confidential medical information in an improper manner between May 12,

2003 and September 8, 2004. However, complainant did not initiate EEO

contact regarding this claim until August 17, 2005, well after expiration

of the forty-five (45) day limitation.3 Consequently, we find that the

AJ properly concluded that complainant failed to initiate timely EEO

Counselor contact.

On appeal, complainant argues that his claim should be considered timely

because he had contested the agency's alleged discriminatory actions for

several years. Additionally, complainant alleges that he had previously

called the agency's EEO Office regarding his complaints. However, there

is no evidence that he ever initiated EEO contact regarding his claim of

improper medical disclosure prior to August 17, 2005. A review of the

record reveals that complainant alleged discrimination claims against

the agency in grievances and in a civil action prior to August 17, 2005,

including claims alleging that the agency was denying him promotions,

denying him a reasonable accommodation, and requiring him to submit

excessive medical documentation. However, these claims are separate and

distinct from his claim of improper disclosure of confidential medical

information, and he failed to demonstrate that he initiated timely EEO

contact on this claim. Moreover, there is no dispute that complainant

was aware of the 45 day time limit, as he indicates in the record and on

appeal that he had seen the agency's posted EEO notices. Therefore, we

find that complainant failed to provide adequate justification to warrant

an extension or waiver of the applicable time limit in this case.

Since we find the AJ's dismissal for untimely EEO Counselor contact

was proper, we do not address whether the AJ's issuance of a decision

without a hearing on the merits was appropriate or whether complainant

was subjected discrimination on the bases of race, national origin, sex,

religion, color, disability, age, and in reprisal for prior protected

EEO activity arising under the Rehabilitation Act. We also find that

the AJ did not abuse his discretion in denying complainant's request

for further discovery. We note that complainant's request for further

discovery had no bearing on the timeliness of his complaint and that

complainant had ample opportunity to address the timeliness of his

complaint before the AJ and on appeal.

Accordingly, the agency's final order adopting the AJ's dismissal for

untimely EEO Counselor contact is AFFIRMED.

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

_____8/7/09_____________

Date

1 Complainant's complaint alleged three other claims of discrimination,

including that agency attorneys would not negotiate with him, that his

request for a mentor and reasonable accommodation was denied, and that

he was denied a promotion.

2 The Commission's decision also reversed the agency's dismissal of

complainant's reprisal claim(s). Id. However, the Commission's decision

considered reprisal as an additional basis and ultimately affirmed the

agency's final orders dismissing or finding no discrimination on all of

complainant's remaining claims. Id.

3 We concur with the AJ's determination that complainant did not raise a

claim of violation of medical confidentiality until he filed his formal

complaint on August 17, 2005.

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0120083786

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0120083786