01A30542
03-05-2003
Stephen W. Fey, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Stephen W. Fey v. United States Postal Service
01A30542
March 5, 2003
.
Stephen W. Fey,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A30542
Agency No. 4E-590-0027-02
DECISION
Complainant filed an appeal with this Commission from an agency decision
pertaining to his complaint of unlawful employment discrimination in
violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 et seq. The Commission accepts the
appeal in accordance with 29 C.F.R. � 1614.405.
On March 8, 2002, complainant contacted an EEO Counselor regarding
claims of discrimination based on disability. Informal efforts to
resolve complainant's concerns were unsuccessful. Subsequently,
complainant filed a formal complaint. The agency, in its decision,
framed the claims as follows:
(1) on January 11, 2002, complainant was denied light duty after knee
surgery;
(2) on April 5, 2002, complainant's Supervisor and Postmaster ridiculed
complainant during a meeting regarding a proposed job offer; and,
(3) on June 13, 2002, complainant was issued a Fourteen (14) Day
Suspension based upon medical documentation received by the agency from
a psychiatrist that complainant had met with at the request of the agency.
On September 23, 2002, the agency issued a decision dismissing the
complaint on the grounds of untimely counselor contact and failure to
state a claim. Specifically, the agency found that complainant waited
fifty-six days after the alleged event in claim (1) to contact the EEO
Counselor. The agency also determined that claim (1) failed to state
a claim, noting that the Office of Workers' Compensation Program (OWCP)
paid him for the time he was denied light duty. Therefore, according to
the agency, complainant suffered no harm. Claim (2) was also dismissed
for failure to state a claim. The agency reasoned that there was no
evidence that being ridiculed caused complainant any personal harm.
Lastly, with respect to claim (3), the agency determined that the matter
was not discussed during counseling nor was it related to his light duty
issue. Complainant was advised to contact the EEO Counselor.
Claim (1)
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.
Here, the record shows that complainant contacted the EEO office on
March 8, 2002 regarding an event that occurred on January 11, 2002.
Complainant's contact was beyond the forty-five-day time limitation.
Based on a review of the record, we do not find that complainant has
provided sufficient justification for extending or tolling the time limit.
Therefore, the Commission finds that agency's dismissal of claim (1)
was proper.<1>
Claim (2)
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 (2), complainant contends that he was ridiculed during a
meeting. The Commission has repeatedly found that remarks or comments
unaccompanied by a concrete agency action are not a direct and personal
deprivation sufficient to render an individual aggrieved for the purposes
of Title VII. See Backo v. United States Postal Service, EEOC Request
No. 05960227 (June 10, 1996); Henry v. United States Postal Service,
EEOC Request No. 05940695 (February 9, 1995). Complainant has not
shown that the alleged comments were accompanied by a concrete action.
Therefore, we do not find that complainant has alleged a personal harm
or loss to a term, condition, or privilege of his employment.
Claim (3)
The regulation set forth at 29 C.F.R. � 1614.107(a)(2) states, in
pertinent part, that an agency shall dismiss a complaint which raises a
matter that has not been brought to the attention of an EEO Counselor,
and is not like or related to a matter on which the complainant has
received counseling. A later claim or complaint is "like or related"
to the original complaint if the later claim or complaint adds to
or clarifies the original complaint and could have reasonably been
expected to grow out of the original complaint during the investigation.
See Scher v. United States Postal Service, EEOC Request No. 05940702
(May 30, 1995); Calhoun v. United States Postal Service, EEOC Request
No. 05891068 (March 8, 1990).
As an initial matter, it is unclear when claim (3) was added to
complainant's complaint. In its decision, the agency notes that
complainant only received counseling on the alleged denial of light duty.
Thereafter, complainant added claim (2), which �was amended to your
complaint because it was related to your being offered a light/limited
duty.� According to the agency, complaint later claimed he was issued a
14-Day Suspension. We do agree, however, that this issue is not reflected
in the Counselor's Report nor the formal complaint form. Moreover,
claim (3) is not "like or related" to the matters counseled. Therefore,
the agency was correct in advising complaint to seek EEO counseling if
he wishes to pursue the suspension claim through the EEO process.
Accordingly, the agency's decision was proper and is hereby AFFIRMED.
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 (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
March 5, 2003
__________________
Date
1 Because of our disposition we do not address whether the claim was
also properly dismissed for failure to state a claim.