0120090319
03-06-2009
Michael J. Coker, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Michael J. Coker,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120090319
Agency No. 1H-321-0037-08
DECISION
Complainant filed a timely appeal with this Commission from a final agency
decision (FAD) dated September 22, 2008, dismissing his 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. and
Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as
amended, 29 U.S.C. � 791 et seq. In his complaint, complainant alleged
that he was discriminated against based on his race (African-American),
sex (male) and disability (foot) when starting on February 28, 2008,
he was not allowed to work by the agency because he was wearing an air
cast boot, and was kept out of work beyond this date for this reason.
Complainant partially tore a tendon and was treated with wearing an air
cast boot. Complainant states that on or about February 28, 2008, he was
told by the Manager of Distribution Operations and the Plant Manager that
he was not allowed to wear the boot on the workroom floor, and was told by
one or both of them that no light duty was available while he was wearing
the boot. The next day, according to note by complainant's physician,
the physician called an agency supervisor and was told complainant was
prohibited from wearing anything exposing his toes because of potential
injury. The physician gave complainant medical documentation the same day
stating he could work full duty with the air cast boot, and repeatedly
renewed this documentation, indicating there were no restrictions.
Complainant was scheduled to wear the air cast boot for six weeks.
Complainant then had an unrelated surgery, and was out of work from
May 22, 2008 to June 23, 2008. Complainant avers that upon returning
he learned a black female employee on a different shift was working on
the workroom floor with the same air cast boot he wore. Complainant
indicates it was at this point that he realized he was discriminated
against. He initiated contact with an EEO counselor on July 4, 2008.
The FAD dismissed the complaint for failure to timely initiate contact
with an EEO counselor. It reasoned that the alleged discrimination
occurred on February 28, 2008, but complainant did not contact an EEO
counselor until July 4, 2008, beyond the 45 calendar day time limit.
It also dismissed the complainant for failure to state a claim, finding
complainant was not harmed.
An aggrieved person must seek EEO counseling within 45 days of
the date of the alleged discriminatory action, or in the case of a
personnel action, within 45 days of the effective date of the action.
29 C.F.R. � 1614.105(a)(1) & .107(a)(2). The time limit to seek EEO
counseling shall be extended when an individual shows that he did not
know and reasonably should not have known that the discriminatory
action or personnel action occurred. 29 C.F.R. � 1614.105(a)(2).
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.
Complainant was upset that the agency did not listen to his doctor's notes
that he could work without restrictions. The agency told complainant
that he was not permitted to work on the workroom floor with an air
cast boot like the one he wore for safety reasons. However, on or
about June 23, 2008, complainant states he learned another employee was
working on the workroom floor with the same air cast boot he had worn.
We find that because of the agency's explanation to complainant, he did
not form a reasonable suspicion of discrimination until the explanation
was contradicted by learning that someone else was permitted to work on
the floor with the same air cast boot complainant wore. As he initiated
EEO contact within 45 calendar days of learning of this, his contact
was timely.
The agency cites Commission cases for the proposition that learning
another employee is allowed to work with restrictions while a complainant
was not allowed to work does not give rise to a claim. Doleshal
v. Department of Health and Human Services, EEOC Appeal No. 01A40020
(July 29, 2004); Daniels v. Unites States Postal Service, EEOC Appeal
No. 01920439 (February 23, 1992). It also cites Commission cases for
the proposition that discovery of a new comparison employee does not
give rise to a new claim. Adams v. Unites States Postal Service,
EEOC Appeal No. 01005341 (January 12, 2001), and Wagner v. Unites
States Postal Service, EEOC Appeal No. 01A22766 (July 23, 2002).
None of these decisions are on point. All involve situations where
a complainant previously filed a complaint, attempted to create a new
claim by citing a new comparative employee, and the Commission rejected
the attempts, finding there was no new claim, only an attempt to renew an
old complaint or elaborate on it. Here, complainant did not previously
file a complaint, but formed a reasonable suspicion of discrimination for
the first time when he learned that a comparative employee was allowed
to work on the floor with the same air cast boot which he was told could
not be worn on the floor.
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). Not being permitted to work for
a number of weeks states a claim. Complainant wrote that he lost pay.
The FAD is reversed.
ORDER
The agency is ordered to process the remanded claims in accordance with
29 C.F.R. � 1614.108. The remanded claim is whether complainant was
discriminated against based on his race (African-American), sex (male)
and disability (foot) when starting on February 28, 2008, he was not
allowed to work by the agency because he was wearing an air cast boot, and
was kept out of work beyond this date for this reason. 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 (K1208)
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 77960, Washington,
DC 20013. 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 (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 (R0408)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. 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 filed your appeal with the
Commission. 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. 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
March 6, 2009
__________________
Date
2
0120090319
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120090319