0120092113
08-07-2009
Loren C. Lopez, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Loren C. Lopez,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120092113
Agency No. 1E-802-0004-09
DECISION
Complainant filed an appeal with this Commission from a final agency
decision, dated March 10, 2009, dismissing his formal complaint of
unlawful 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. The
Commission accepts the appeal in accordance with 29 C.F.R. � 1614.405.
On October 30, 2008, complainant contacted an EEO Counselor regarding
claims of discrimination based on his national origin and prior
EEO activity. Informal efforts to resolve complainant's concerns
were unsuccessful. On February 21, 2009, complainant filed a formal
complaint.
The agency framed the claims as follows:
(1) On April 21, 2008, complainant received a letter from the FMLA office
that he had to recertify his FMLA condition;
(2) On September 12, 2008, sixteen hours of pay were taken out of
complainant's paycheck due to a Letter of Demand he received in August
2008;
(3) On September 21, 2008 and subsequent dates, the computer could not
validate complainant's FMLA number when he called;
(4) Since September 24, 2004, complainant has been assigned dock clerk
duties with no regard to his seniority status; and,
(5) Since February 21, 2003, complainant has not been trained for the
Bulk Mail Technician position.
In its final decision, the agency dismissed the formal complaint on the
grounds of untimely EEO Counselor contact, failure to state a claim,
and raising the same claim that has been previously decided by the
agency. Specifically, claims (1), (2), (4) and (5) were dismissed as
untimely. According to the agency, complainant's October 30, 2008 contact
was 192 days after the event in claim (1), 48 days after claim (2), and
years after the events raised in claims (4) and (5). Claim (3), along
with claim (1), were dismissed as collateral attacks upon the FMLA (Family
Medical Leave Act) process which is governed by the Department of Labor.
Claim (4) was also dismissed on additional grounds, for failure to state
and stating the same claim that was previously raised with the agency.
On appeal, complainant argues that his complainant concerns twenty-five
years of harassment by his supervisor. Complainant contends that his
problems with FMLA matters were part of this harassment. Complainant
states that the April 2008 letter (claim (1)) was included as "background
information" and therefore should not be the start for calculating the
time limit. Regarding claim (2), complainant believes his contact was
timely.
In response, the agency says that complainant's claim of harassment,
raised for the first time on appeal, is vague and insufficiently severe
or pervasive. Regarding claim (2), the agency states that the Letter of
Demand provided complainant with payment options and informed him that if
he did not select voluntary payment, involuntary payroll deductions would
follow. The agency argues that the "deduction is a collateral effect
of him not responding to . . . the Letter of Demand." Alternatively,
the agency contends that an arbitration decision cancelled the Letter
of Demand and absolved complainant of any liability. Regarding claims
(4) and (5), the agency asserts that complainant does not dispute its
claims that the matters were untimely raised with an EEO Counselor.
Similarly, the agency contends that complainant does not challenge the
dismissal of claim (4) as previously raised in a prior complaint.
Claims (1), (2), (4) and (5)
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.
As noted above, the agency dismissed claims (1), (2), (4) and (5) on
the grounds of untimely EEO Counselor contact. Regarding claim (1),
on appeal complainant explains that the event was merely provided as
background information and does not challenge the agency's dismissal.
Consequently, we find that claim (1) was properly dismissed.
In claim (2), complainant alleges that sixteen hours of pay were taken
from his paycheck on September 12, 2008. While the agency argues that the
forty-five day time limit should start from August 2008, when a Letter
of Demand was issued, we find that even if the time begins from the
later date, complainant's contact was still untimely. To be considered
timely, from September 12, 2008, complainant needed to initiate contact
by October 27, 2008. Because complainant's contact was not until three
days later, on October 30, 2008, it was properly dismissed pursuant to
Regarding claims (4) and (5), complainant vaguely claims that the
discrimination has occurred "since September 24, 2004 to the present" and
"Since February 21, 2003 to the present", respectively. Complainant has
not provided more specific information regarding events transpiring
within forty-five days of his October 30, 2008 contact. Consequently,
we find that the agency's dismissal of claims (4) and (5) for untimely
counselor contact was proper.
Claim (3)
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).
In claim (3), complainant claims that the computer could not validate
his FMLA number when he called. The Commission finds that complainant
has failed to show how this incident relates to a term, condition or
privilege of his employment. Further, to the extent that complainant is
challenging his FMLA benefits, the claim is an impermissible collateral
attack on the FMLA process. 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).
Finally, we note that because of our disposition the Commission shall
not consider whether the claims were properly dismissed on alternative
grounds.
The agency's decision dismissing the complaint was proper and is hereby
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
August 7, 2009
__________________
Date
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0120092113
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120092113