01993153
12-13-2000
Michael C. Ruppel, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Allegheny Area), Agency.
Michael Ruppel v. USPS
01993153
December 13, 2000
.
Michael C. Ruppel,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
(Allegheny Area),
Agency.
Appeal No. 01993153
Agency No. 4C440029898
DECISION
INTRODUCTION
Complainant filed a timely appeal with this Commission from a final
agency decision (FAD) dated February 10, 1999, dismissing his complaint
of unlawful employment discrimination (no statutory bases specified).<1>
The appeal is accepted pursuant to 29 C.F.R. � 1614.405. In his complaint,
complainant alleged discrimination on the basis of retaliation (prior EEO
activity) when: (1) on April 14, 1998, he was placed on administrative
leave; (2) on April 14, 1998, he was interrogated by Postal Inspectors
and asked to provide a medical release of records and not paid for two
hours overtime [for the time] he was questioned; (3) on May 22, 1998,
he received a letter requesting that he obtain authorization to come back
to work from his doctor as well as clearance from a medical unit at the
main post office, but he was unable to comply on such short notice and
had to use 16 hours of annual leave.
BACKGROUND
The agency dismissed the complaint pursuant to EEOC Regulation 29
C.F.R. � 1614.105, now codified at 29 C.F.R. � 1614.107(a)(2), noting
that complainant did not initiate contact with an EEO counselor until
July 8, 1998, more than 45 days after the alleged discriminatory acts
about which he complained.
On appeal, complainant argues, that having been placed on administrative
leave until May 22, 1998, he was reluctant to file any additional
complaints for fear of not being allowed to return to work. Complainant
also argues that he was previously �arrested� for trying to attend a
pre-complaint counseling session involving a previous EEO complaint
and was concerned for a period of time for his personal safety.
Complainant further submits that he was under psychiatric care and
suffered considerably after the �arrest.� Finally, complainant argues
that harassment continued after his return to work.
The agency responds that its position as stated in the FAD remains
unchanged and that complainant does not raise any new contentions.
The agency further submits that complainant has not provided any
evidence indicating that a waiver of the applicable time limits would
be appropriate, and that complainant was aware of the EEO process,
having participated in prior EEO activity.
ANALYSIS AND FINDINGS
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. 29 C.F.R. � 1614.105(a)(2).
Fear of Potential Punishment
Complainant's first argument, about not being allowed to return to
work, concerns speculative and possible future harm. Complainant is
predicting the potential for a future harm., i.e., reprisal for being a
"troublemaker.� There is no present injury to complainant, however.
We see no compelling reason in this instance for the concern over future
harm to justify extension of the time limit for contacting the EEO
counselor. In any event, complainant acknowledges that he was instructed
to come back to work on May 22, 1998, a number of days before the 45-day
time period expired for EEO counselor contact, with respect to the first
allegation, and the start of the 45-day time period with respect to the
second allegation. In any event, he was instructed to come back to work
well before July 8, 1998, when he finally did contact the EEO counselor.
Complainant gives no explanation why he could not have contacted an EEO
counselor sooner.
Arrest and Psychiatric Treatment
Complainant did not sufficiently detail or explain how his alleged
�arrest� or psychiatric treatment materially affected the untimeliness
of his EEO counselor contact on appeal.<2> We have consistently held,
in cases involving physical or mental health difficulties, that an
extension is warranted only where an individual is so incapacitated by
his condition that he is unable to meet the regulatory time limits.
See Davis v. United States Postal Service, EEOC Request No. 05980475
(August 6, 1998); Crear v. United States Postal Service, EEOC Request
No. 05920700 (October 29, 1992). Complainant did not provide specifics
of his psychiatric treatment, with respect to his illness' duration,
severity, and impact, and his alleged inability to timely contact his
EEO counselor. According to complainant, the alleged �arrest� occurred
on April 14, 1998, and is one of the subjects of the complaint, supra.
The �arrest,� which involved questioning by agency officials, did not
involve incarceration. While complainant perceived himself to be in
custody, he realized after the first half of the questioning that he
was not in custody. It appears that the total questioning involved
two hours. Complainant did not otherwise address how the alleged
�arrest� so incapacitated his ability to contact his EEO counselor.
In sum, we fail to see how complainant was so incapacitated as to be
unable to timely contact his EEO counselor.
Harassment
Finally, complainant argues that there was continued harassment, after
he returned to work. Complainant must provide a factual explanation why
he believes that the alleged harassment is on-going, or otherwise allege
facts that are sufficient to indicate that he may have been subjected
to on-going harassment which continued into the 45-day period for EEO
counselor contact. See, e.g., Redmon v. Office of Personnel Management,
EEOC Request No. 05991100 (August 25, 2000) (sufficiency of factual
allegations where an on-going discriminatory system or policy is
alleged).
With one exception, complainant did not adequately detail or explain the
alleged continued harassment for purposes of considering the timeliness
of EEO counselor contact in this case.<3> Complainant thus complains of
the agency's requests for medical documentation for fitness for duty after
coming back to work. However, complainant had been off work since April
14, 1998, for apparent medical reasons. The agency's first request was
necessarily due to the fact that complainant had not yet furnished the
requested medical documentation to the agency. Complainant acknowledges
that it was he who brought his failure to furnish the documentation
to the agency's attention. Although there was a second request, which
complainant complied with, we think this is too slim a reed to include
in a pattern of continued harassment. In sum, while complainant devotes
some discussion to harassment in a general manner, there is insufficient
detailing of the nature of the harassment after he returned to work to
support an allegation of continued harassment.
CONCLUSION
Upon review, the Commission finds that complainant's complaint was
properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely
EEO contact. The record discloses that the alleged discriminatory
events, which were dismissed, occurred on April 14 and May 22, 1998,
but complainant did not initiate contact with an EEO Counselor until
July 8, 1998, which is beyond the forty-five (45) day limitation period.
On appeal, no persuasive arguments or evidence have been presented to
warrant an extension of the time limit for initiating EEO contact.
Accordingly, the agency's final decision dismissing complainant's
complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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 (S0900)
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 (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
December 13, 2000
__________________
Date
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply
to all federal sector EEO complaints pending at any stage in the
administrative process. Consequently, the Commission will apply
the revised regulations found at 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2The record indicates that complainant has suffered from depression.
3Nevertheless, complainant is advised that if he wishes to pursue,
through the EEO process, the harassment claim, separate and apart from
retaliation, raised for the first time on appeal, he shall initiate
contact with an EEO Counselor within 15 days after he receives this
decision. The Commission advises the agency that if complainant seeks
EEO counseling regarding the new claim within the above 15-day period,
the date complainant filed the appeal statement in which he raised the
claim with the agency shall be deemed to be the date of the initial
EEO contact, unless he previously contacted a counselor regarding these
matters, in which case the earlier date would serve as the EEO Counselor
contact date. Cf. Alexander J. Qatsha v. Department of the Navy, EEOC
Request No. 05970201 (January 16, 1998).