0120090765
07-09-2009
Timothy P. Gill, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Timothy P. Gill,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120090765
Agency No. 4E680005908
DECISION
Complainant filed a timely appeal with this Commission from the
agency's decision dated October 29, 2008, dismissing 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. and the Age Discrimination in Employment Act
of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. In his complaint,
complainant alleged that he was subjected to discrimination on the bases
of physical disability (kidney, ankles, and shoulder) and age (58) when:
1. On May 16, 2008 he was required to obtain medical documentation for
FMLA purposes;
2. On June 23, 2008, the agency attempted to force him to take FMLA for
the end of the tour;
3. On August 1, 2008, complainant's supervisor harassed complainant and
4. On October 6, 2008, complainant was told to provide a doctor's
statement.
The agency dismissed the instant complaint as untimely on the grounds
that complainant failed to contact an EEO Counselor in a timely manner.
Specifically, the agency determined that complainant's counselor
contact on July 10, 2008 regarding the events described in claims 1-4
was untimely. Upon review, the Commission finds that the agency's
dismissal of claim 1 as untimely was proper. However, we find that
claims 2, 3 and 4 are more properly analyzed to determine whether or
not they state a claim.
The record discloses that the alleged discriminatory event described in
clam 1 occurred on May 16, 2008, but complainant did not initiate contact
with an EEO Counselor until July 10, 2008, which is beyond the forty-five
(45) day limitation period. 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.
On appeal, complainant has presented no persuasive arguments or evidence
warranting an extension of the time limit for initiating EEO Counselor
contact regarding claim 1.
Turning now to claims 2, 3, and 4, the Commission determines that
complainant has failed to state a claim of discrimination. Specifically,
the Commission finds that in claim 2, complainant alleged that the agency
"attempted to force him to take FMLA." However, complainant fails to
point to any specific adverse action taken by the agency. Similarly
regarding claims 3 and 4, complainant has failed to demonstrate how
the agency's conduct in asking complainant to provide a doctor's note
affected a term, condition or privilege of employment. In addition,
complainant has failed to describe any specific harassment by his
supervisor occurring on August 1, 2008. Upon review, the Commission
finds that with respect to claims 2, 3, and 4, complainant has failed
to demonstrate that he suffered any harm to the terms or conditions of
his employment. Moreover, complainant has failed to demonstrate that
he was subjected to harassment so severe or pervasive that it altered
the conditions of his employment with the agency.
Accordingly, the agency's final decision dismissing complainant's
complaint is affirmed for the reasons set forth herein.
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 (S0408)
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 (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
July 9, 2009
__________________
Date
2
0120090765
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
4
0120090765