Mateo R. Martinez, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionFeb 3, 2004
01A40160_r (E.E.O.C. Feb. 3, 2004)

01A40160_r

02-03-2004

Mateo R. Martinez, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Mateo R. Martinez v. United States Postal Service

01A40160

February 3, 2004

.

Mateo R. Martinez,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A40160

Agency No. 1G-784-0011-03

DECISION

Complainant appealed to this Commission from the agency's September

8, 2003 dismissal of his employment discrimination complaint. In his

complaint, complainant alleged that he was subjected to discrimination

on the bases of disability and age when:

Since June 2001, including September 2002 and March 6 and 10, 2003,

complainant repeatedly has been denied the opportunity to serve as a

204-B Acting Supervisor; and

On January 15, 2002, November 8, 2002, February 2003, and March 10, 2003,

complainant's repeated requests to have her hours changed back to 1530

and to be given consecutive days off were denied and/or ignored.

In its final decision, the agency dismissed the complaint for untimely

EEO Counselor contact. Specifically, the agency found that complainant

first contacted an EEO Counselor on April 10, 2003, but that he should

have suspected discrimination when his requests for schedule changes

and work as a 204-B were first denied. According to the agency,

complainant's repetition of the already denied requests does not render

his claims timely.

In his �Information for Precomplaint Counseling� form, complainant

explains the circumstances surrounding his requests to serve as a 204-B.

According to complainant, his supervisor either ignored his requests,

or responded in a manner that led complainant to believe he might be

given the opportunity to serve as a 204-B in the future. According to

complainant, his supervisor's responses to his requests included:

�we'll see,� �I'll get back to you later,� �there's no opening now,�

or �give me something in writing that states you can walk and stand

for eight hours or more from the doctor.� According to complainant,

his request was never explicitly denied, but he simply never received

a 204-B opportunity, even after he provided the requested documentation.

Complainant must raise claims of discrimination within forty-five (45)

days of their occurrence. See 29 C.F.R. � 1614.105(a)(1). The agency

may dismiss claims that fail to comply with this time limit. See 29

C.F.R. � 1614.107(a)(2). 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.

In the present case, complainant alleges that he did not reasonably

suspect discrimination until the agency denied his March 10, 2003 requests

to work as a 204B, and to be granted certain schedule changes. Assuming

complainant's allegations are true, the agency never unequivocally

denied his request to work as a 204-B until March 2003. Complainant

rather contends that his supervisors delayed making any decision, or

informed him he could have an opportunity to work as a 204-B when he met

certain conditions, such as medical fitness. When complainant met these

conditions, he still was not placed on the schedule to work as a 204-B.

In a March 10, 2003 letter, complainant explained that he did not know

why he was not being allowed to work as a 204-B, and believed it was

a future possibility, until his supervisor attempted to explain why he

would not be given such an opportunity in a March 6, 2003 discussion.

At this point, complainant reasonably suspected discrimination.

Complainant then contacted an EEO Counselor within forty-five days of

suspecting discrimination for claim (1), on April 10, 2003. Therefore,

the agency's dismissal of claim (1) was improper.

With respect to the schedule changes identified in claim (2), the

Commission finds that complainant's EEO Counselor contact was untimely.

In his March 10, 2003 written request, complainant contends that his

supervisor agreed to �get back with [him]� about his schedule change

request, but failed to do so. The record, however, indicates that

complainant already was aware that his schedule change request would not

be honored. Complainant repeatedly requested the same schedule changes,

and, unlike its responses to complainant's request to work as a 204-B, the

agency unequivocally denied complainant's request. The record includes a

letter, dated February 12, 2003, addressed to complainant from the local

union president. In this letter, the union official informed complainant

that his schedule would not be changed, because he was needed �on those

hours you are now being scheduled to work.� Further, complainant has

shown no changed circumstances or other reason to believe that further

requests may garner a different result. Cf. Tyler v. United States Postal

Service, EEOC Appeal No. 01A02261 (July 19, 2000) (generally, a request

for reinstatement is the same claim as prior requests for reinstatement)

(citations omitted). Therefore, complainant should have contacted an

EEO Counselor within forty-five days of being denied a schedule change.

He failed to do so, and has not adequately explained his delay.

Therefore, the agency's dismissal of claim (2) was proper.

CONCLUSION

Accordingly, the agency' dismissal of claim (1) is REVERSED, and claim

1 is REMANDED to the agency for further processing in accordance with

the Order herein. The agency's dismissal of claim (2) is AFFIRMED.

ORDER (E0900)

The agency is ordered to process the remanded claims in accordance with

29 C.F.R. � 1614.108. 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 (K0501)

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 19848,

Washington, D.C. 20036. 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 (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 (T0900)

This decision affirms the agency's final decision/action in part, but it

also requires the agency to continue its administrative processing of a

portion of your complaint. 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 on both that portion

of your complaint which the Commission has affirmed and that portion

of the complaint which has been remanded for continued administrative

processing. 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 your appeal with the Commission, until

such time as the agency issues its final decision on your complaint.

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 3, 2004

__________________

Date