0120070672_Graham
02-25-2009
Kenneth L. Graham, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Kenneth L. Graham,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120070672
Agency No. 4F920011304
Hearing No. 340-2005-00612X
DECISION
Complainant filed a timely appeal with this Commission from the
agency's decision dated September 29, 2006, 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 all times relevant to this complaint, complainant worked as a mail
handler at the agency's Processing and Distribution Center in San
Bernardino, California. In 2001, complainant was diagnosed with a
medial meniscus tear of left knee and a right knee sprain, which would
require surgery.
On March 13, 2002, complainant submitted a Department of Labor (DOL)
Form CA-2, Notice of Occupational Disease and Claim for Compensation,
concerning his knee injuries. On April 2, 2002, the DOL accepted
his claim.
On April 23, 2002, complainant called the agency's Injury Compensation
Office and asked if he could buy back the leave that he used for his
knee injury. Complainant was informed that, in accordance with agency
policy, he could not buy back any leave taken after the DOL accepted his
injury compensation claim on April 2, 2002. Complainant was informed
that the policy states that once DOL accepts a claim, an employee
can use leave without pay so as to conserve leave because DOL will be
compensating the employee during the time-frame of the accepted claim.
The record reveals that this was reiterated to complaint in writing on
July 1, 2002, and again via voicemail on July 18, 2002. Despite this,
complainant continued to use sick leave, and between April 16, 2002 and
August 19, 2002, used approximately 452 hours of sick leave in connection
with his knee injury.
Complainant further alleges that on an unspecified date, his supervisor
placed him on restricted sick leave. Complainant's supervisor states
that while he had discussions with complainant about placing him on
restricted sick leave in the future, complainant was never actually
placed on restricted sick leave.
Complainant initiated EEO Counselor contact on February 19, 2004. On
November 2, 2004, complainant filed a formal complaint of discrimination
on the basis of disability (medial meniscus tear of left knee and right
knee sprain) and in reprisal for filing a claim with DOL's Office of
Workers' Compensation Programs1 when:
1. On an unspecified date, his request to buy back sick leave was denied;
and
2. On an unspecified date, he was allegedly placed on restricted sick
leave.
At the conclusion of the investigation, complainant was provided with a
copy of the report of investigation and notice of his right to request a
hearing before an EEOC Administrative Judge (AJ). Complainant requested a
hearing; however, on September 20, 2006, the AJ issued a decision without
a hearing. The AJ dismissed both claims in complainant's complaint.
Specifically, with regard to claim 1, the AJ found that complainant was
untimely in his initial contact with an EEO Counselor. Further, the
AJ dismissed claim 2 finding that complainant failed to state a claim.
On September 29, 2006, the agency issued a final order fully implementing
the AJ's decision. Complainant now appeals to the Commission.
ANALYSIS and FINDINGS
Claim 1
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.
The record supports a finding that complainant knew or should have known
of the alleged discrimination when his request to buy back his leave
was first denied in April 23, 2002. Complainant's EEO Counselor contact
on February 19, 2004, is well beyond the 45-day time limit. Therefore,
we AFFIRM the dismissal of this claim for untimely EEO Counselor contact.
Claim 2
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in
relevant part, that an agency shall dismiss a complaint 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,
.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).
While complainant alleges that he was placed on restricted sick leave,
the record reveals that complainant was never placed on restricted
sick leave. The only mention of restricted sick leave was on May 15,
2003, where complainant's supervisor noted that he was considering
placing complainant on restricted sick leave. However, the supervisor
never actually placed complainant on restricted sick leave. Therefore,
complainant failed to show that he suffered a harm or loss with respect
to a term, condition, or privilege of employment. As a result, we AFFIRM
the dismissal of this claim for failure to state a claim.
CONCLUSION
Accordingly, after a thorough review of the record in its entirety,
including consideration of all statements submitted on appeal, it is
the decision of the Equal Employment Opportunity Commission to AFFIRM
the agency's final order dismissing complainant's complaint.
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
February 25, 2009
Date
1 We note that filing an OWCP claim is not considered a prior protected
EEO activity under our regulations.
??
??
??
??
2
0120070672
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120070672