Michael C. Ruppel, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, (Allegheny Area), Agency.

Equal Employment Opportunity CommissionDec 13, 2000
01993153 (E.E.O.C. Dec. 13, 2000)

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).