01A40160_r
02-03-2004
Mateo R. Martinez v. United States Postal Service
01A40160
February 3, 2004
.
Mateo R. Martinez,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A40160
Agency No. 1G-784-0011-03
DECISION
Complainant appealed to this Commission from the agency's September
8, 2003 dismissal of his employment discrimination complaint. In his
complaint, complainant alleged that he was subjected to discrimination
on the bases of disability and age when:
Since June 2001, including September 2002 and March 6 and 10, 2003,
complainant repeatedly has been denied the opportunity to serve as a
204-B Acting Supervisor; and
On January 15, 2002, November 8, 2002, February 2003, and March 10, 2003,
complainant's repeated requests to have her hours changed back to 1530
and to be given consecutive days off were denied and/or ignored.
In its final decision, the agency dismissed the complaint for untimely
EEO Counselor contact. Specifically, the agency found that complainant
first contacted an EEO Counselor on April 10, 2003, but that he should
have suspected discrimination when his requests for schedule changes
and work as a 204-B were first denied. According to the agency,
complainant's repetition of the already denied requests does not render
his claims timely.
In his �Information for Precomplaint Counseling� form, complainant
explains the circumstances surrounding his requests to serve as a 204-B.
According to complainant, his supervisor either ignored his requests,
or responded in a manner that led complainant to believe he might be
given the opportunity to serve as a 204-B in the future. According to
complainant, his supervisor's responses to his requests included:
�we'll see,� �I'll get back to you later,� �there's no opening now,�
or �give me something in writing that states you can walk and stand
for eight hours or more from the doctor.� According to complainant,
his request was never explicitly denied, but he simply never received
a 204-B opportunity, even after he provided the requested documentation.
Complainant must raise claims of discrimination within forty-five (45)
days of their occurrence. See 29 C.F.R. � 1614.105(a)(1). The agency
may dismiss claims that fail to comply with this time limit. See 29
C.F.R. � 1614.107(a)(2). 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.
In the present case, complainant alleges that he did not reasonably
suspect discrimination until the agency denied his March 10, 2003 requests
to work as a 204B, and to be granted certain schedule changes. Assuming
complainant's allegations are true, the agency never unequivocally
denied his request to work as a 204-B until March 2003. Complainant
rather contends that his supervisors delayed making any decision, or
informed him he could have an opportunity to work as a 204-B when he met
certain conditions, such as medical fitness. When complainant met these
conditions, he still was not placed on the schedule to work as a 204-B.
In a March 10, 2003 letter, complainant explained that he did not know
why he was not being allowed to work as a 204-B, and believed it was
a future possibility, until his supervisor attempted to explain why he
would not be given such an opportunity in a March 6, 2003 discussion.
At this point, complainant reasonably suspected discrimination.
Complainant then contacted an EEO Counselor within forty-five days of
suspecting discrimination for claim (1), on April 10, 2003. Therefore,
the agency's dismissal of claim (1) was improper.
With respect to the schedule changes identified in claim (2), the
Commission finds that complainant's EEO Counselor contact was untimely.
In his March 10, 2003 written request, complainant contends that his
supervisor agreed to �get back with [him]� about his schedule change
request, but failed to do so. The record, however, indicates that
complainant already was aware that his schedule change request would not
be honored. Complainant repeatedly requested the same schedule changes,
and, unlike its responses to complainant's request to work as a 204-B, the
agency unequivocally denied complainant's request. The record includes a
letter, dated February 12, 2003, addressed to complainant from the local
union president. In this letter, the union official informed complainant
that his schedule would not be changed, because he was needed �on those
hours you are now being scheduled to work.� Further, complainant has
shown no changed circumstances or other reason to believe that further
requests may garner a different result. Cf. Tyler v. United States Postal
Service, EEOC Appeal No. 01A02261 (July 19, 2000) (generally, a request
for reinstatement is the same claim as prior requests for reinstatement)
(citations omitted). Therefore, complainant should have contacted an
EEO Counselor within forty-five days of being denied a schedule change.
He failed to do so, and has not adequately explained his delay.
Therefore, the agency's dismissal of claim (2) was proper.
CONCLUSION
Accordingly, the agency' dismissal of claim (1) is REVERSED, and claim
1 is REMANDED to the agency for further processing in accordance with
the Order herein. The agency's dismissal of claim (2) is AFFIRMED.
ORDER (E0900)
The agency is ordered to process the remanded claims in accordance with
29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant
that it has received the remanded claims within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue
to complainant a copy of the investigative file and also shall notify
complainant of the appropriate rights within one hundred fifty (150)
calendar days of the date this decision becomes final, unless the matter
is otherwise resolved prior to that time. If the complainant requests a
final decision without a hearing, the agency shall issue a final decision
within sixty (60) days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 19848,
Washington, D.C. 20036. 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 (T0900)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. In the alternative, you may file a civil action after
one hundred and eighty (180) calendar days of the date you filed your
complaint with the agency, or your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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 3, 2004
__________________
Date