0520120440
11-02-2012
John L. Fomby, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Pacific Area), Agency.
John L. Fomby,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Request No. 0520120440
Appeal No. 0120120869
Agency No. 4F-940-0095-11
DENIAL
Complainant timely requested reconsideration of the decision in John L. Fomby v. U.S. Postal Service, EEOC Appeal No. 0120120869 (April 23, 2012). EEOC Regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision where the requesting party demonstrates 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.
See 29 C.F.R. � 1614.405(b).
ISSUE PRESENTED
The issue presented is whether Complainant met the criteria for reconsideration by demonstrating that the appellate decision: (1) involved a clearly erroneous interpretation of material fact or law; or (2) will have a substantial impact on the policies, practices, or operations of the Agency.
BACKGROUND
In the underlying case, Complainant contacted an EEO Counselor on September 14, 2011 and subsequently filed a formal complaint alleging that the Agency discriminated against him on the bases of race (African American), sex (male), disability, age (46), and reprisal for prior protected EEO activity when: (1) effective April 5, 2010, it terminated his employment; and (2) on unspecified dates prior to his termination, it subjected him to hostile work environment harassment and denied him a reasonable accommodation.1
The appellate decision affirmed the Agency's dismissal of Complainant's complaint pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely EEO Counselor contact. Specifically, the appellate decision found that Complainant's September 14, 2011 EEO Counselor contact occurred more than 45 days after the last alleged discriminatory event in each claim. Regarding claim 1, the appellate decision found that the Notice of Removal was delivered to Complainant's address of record on February 25, 2010 and that the effective date of his removal was April 5, 2010. Regarding claim 2, the appellate decision found that Complainant did not assert any set of facts to demonstrate that any of the identified incidents occurred in the 45 days preceding his EEO Counselor contact.
Moreover, the appellate decision found that Complainant presented no persuasive arguments or evidence warranting an extension of the time limit for initiating EEO Counselor contact. Although a December 12, 2011 psychiatric report diagnosed Complainant with a medical condition, the appellate decision found that he failed to demonstrate that he was so incapacitated during the entire period between his removal and his EEO Counselor contact that he was unable to meet the regulatory time limits. The appellate decision noted that, during this same period, Complainant was able to pursue his OWCP claims.
ARGUMENTS ON RECONSIDERATION
In his request for reconsideration, Complainant contended that the appellate decision clearly erred in dismissing his complaint for untimely EEO Counselor contact. Specifically, Complainant argued that his complaint is one of ongoing hostile work environment harassment and ongoing denial of reasonable accommodation, made up of a series of actions taken by the Agency that "continue to [the] present." In addition, Complainant argued that he was unable to process his OWCP documentation due to his mental state of mind and required assistance from his doctor's office.
The Agency did not submit a brief or statement in opposition to Complainant's request.
ANALYSIS AND FINDINGS
Upon review, we find that Complainant's request for reconsideration does not demonstrate that the appellate decision involved a clearly erroneous interpretation of material fact or law, or that the appellate decision will have a substantial impact on the policies, practices, or operations of the Agency. Specifically, Complainant failed to show that the appellate decision clearly erred in dismissing his complaint for untimely EEO Counselor contact.
In his request for reconsideration, Complainant argued that he alleged a series of actions that constitute ongoing hostile work environment harassment and ongoing denial of reasonable accommodation. The Supreme Court has held that a complaint alleging a hostile work environment will not be time barred if all acts constituting the claim are part of the same unlawful practice and at least one act falls within the filing period. See Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 122 (2002). In addition, because an employer has an ongoing obligation to provide a reasonable accommodation, failure to provide such accommodation constitutes a violation each time the employee needs it. See EEOC Compliance Manual Section 2, "Threshold Issues," No. 915.003, at 2-IV.C.1.a (July 21, 2005).
Here, Complainant contacted an EEO Counselor on September 14, 2011. In order for Complainant's EEO Counselor contact to be timely, at least one incident alleged in his complaint must have occurred in the 45 days prior to September 14, 2011, or between July 31, 2011 and September 14, 2011. Complainant, however, was no longer an Agency employee effective April 5, 2010 - more than 17 months before he contacted an EEO Counselor. Based on the above, we find that Complainant has not shown that the appellate decision clearly erred in finding that his complaint failed to allege any incidents that fell within the 45-day period preceding his September 14, 2011 EEO Counselor contact. Moreover, even if Complainant had assistance from the doctor's office in pursuing his OWCP claims, he has not shown that the appellate decision clearly erred in finding that he was not so incapacitated between April 2010 and September 2011 that he was unable to meet the regulatory time limits for his EEO complaint.
CONCLUSION
After reviewing the previous decision and the entire record, the Commission finds that the request fails to meet the criteria of 29 C.F.R. � 1614.405(b), and it is the decision of the Commission to DENY the request. The decision in EEOC Appeal No. 0120120869 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0610)
This decision of the Commission is final, and there is no further right of administrative appeal from the Commission's decision. 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.
RIGHT TO REQUEST COUNSEL (Z0610)
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
__11/2/12________________
Date
1 Complainant alleged that the Agency's actions included: making false statements on his Office of Workers' Compensation (OWCP) documentation; falsely accusing him; violating his medical restrictions; charging him with Absence Without Leave; threatening him with the loss of his job; belittling him; criticizing his work; closely monitoring him; inflicting emotional distress; violating his medical privacy; placing false information in his personnel file; isolating him from other employees; failing to process or delaying the processing of his OWCP documentation; making disparaging statements about his OWCP injury; and calling him a racial slur in front of other employees.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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