01a51198
02-24-2005
Gene B. Tichenor v. Department of Labor
01A51198
February 24, 2005
.
Gene B. Tichenor,
Complainant,
v.
Elaine Chao,
Secretary,
Department of Labor,
Agency.
Appeal No. 01A51198
Agency No. 04-11-054
DECISION
Complainant filed an appeal with this Commission from a final agency
decision, dated June 28, 2004, pertaining to 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.; 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. The Commission accepts
the appeal in accordance with 29 C.F.R. � 1614.405.
On December 30, 2003, complainant initiated contact with the agency's
EEO office claiming he suffered discrimination with respect to his
request for a reasonable accommodation. Informal efforts to resolve
complainant's concerns were unsuccessful.
On February 4, 2004, complainant filed a formal complaint based on
race, color, sex, age, disability and in reprisal for prior protected
activity. In addition to dissatisfaction with the accommodation provided,
complainant amended his formal complaint to include a February 3, 2004
incident wherein his supervisor questioned his absence from his cubicle
for more than an hour.
On June 28, 2004, the agency issued a final decision dismissing the
complaint. Regarding the reasonable accommodation claim, the agency
determined that complainant's December 30, 2003 initial EEO Counselor
contact was untimely. According to the agency, complainant received
the agency's �preliminary� response to his reasonable accommodation
request on July 28, 2003. The agency noted that various measures were
granted, including providing complainant with the opportunity to check
his blood glucose levels in the health unit. The agency determined,
however, that complainant did not express dissatisfaction with this
accommodation until December 30, 2003. The agency found that the �action�
at issue was management's preliminary response, and that, therefore,
complainant had 45 days from July 28, 2003, to challenge management's
response. Additionally, the agency considered the accommodation issue
to be a preliminary step to taking a personnel action and dismissed the
matter pursuant to 29 C.F.R. � 1614.107(a)(5).
Regarding the February 3, 2004 email from complainant's supervisor,
questioning his absence for an hour, the agency found that it failed to
state a claim. Further, it did not find that this claim established a
hostile work environment claim.
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.
The record reflects that on July 3, 2003, complainant requested a
reasonable accommodation for diabetes. Specifically, complainant
sought: (1) elimination of stressful management practices, (2) privacy
to check blood glucose levels (screen for cubicle opening), (3) breaks
for food as needed, (4) 15 to 20 minute break to walk as needed, (5)
rest break for reorientation after hypoglycemic episode, (6) foot stool
or authorization to use two-drawer file cabinet as foot rest as needed,
(7) permission to remove shoes and rest socked feet on foot stool or
two-drawer file cabinet as needed, (8) permission to wear house slippers
around office when shoes irritate or inflame toes.
Complainant received an e-mail response, on July 28, 2003, wherein the
agency requested medical documentation with �a doctor's assessment
of your condition and a statement related to your special needs.�
Additionally, the email indicated that, even prior to receipt of
the medical documentation, it �would like to provide a preliminary
response....� In particular, complainant was advised to go to the Health
Unit to test his blood in private. The complainant was also granted the
ability to take breaks for food, to walk, and to rest. With respect to
the foot rests, the agency indicated that it had three different types
for complainant to choose from and �[a]s soon as we receive your doctor's
assessment we will move forward appropriately.�
The record does not indicate any further reply from complainant until
his December 30, 2003 EEO Counselor contact, wherein he expressed
his dissatisfaction with the agency's accommodation. At that time,
complainant noted that he observed other cubicles, on a different floor,
that had doors. Complainant also expressed his opposition to providing
medical documentation to the agency.
Consequently, the Commission finds that complainant should have
contacted the EEO office within forty-five days of the agency's July
28, 2003 response, as this is the �date of the matter alleged to be
discriminatory.� Therefore, we agree with the agency's dismissal of
the accommodation claim for untimely counselor contact.
Because we affirm the agency's dismissal of this claim for the reason
stated herein, we find it unnecessary to address alternative dismissal
grounds.
Regarding the February 3, 2004 email, the Commission agrees that
complainant has failed to show a personal harm or loss to a term,
condition or privilege of his employment as a result of the supervisor's
inquiry. 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). The instant record does not show
that the email was accompanied by any discipline or other concrete action.
Accordingly, the agency's decision to dismiss the complaint 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
February 24, 2005
__________________
Date