01a63343
09-28-2006
Richard A. Moore, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Richard A. Moore,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A63343
Agency No. 4G-770-0067-06
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision (FAD) dated April 21, 2006, dismissing 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. Complainant claimed that he
was subjected to discrimination based on race (African-American), color
(Black), disability (back, knees, hypertension), and age (born in 1952)
when:
1. On October 14, 2005 and continuous, his carrier case was changed from
a four case shelf to a five case shelf,
2. on October 20, 2005, he was placed in an off duty status (without
pay),
3. he was issued a notice of proposed removal dated December 2, 2005
charging that he assaulted a supervisor on October 20, 2005, and
4. on February 3, 2006, he was not paid official time for attending a
mediation session on complaint 4G-770-0067-06.
The agency issued complainant a decision letter dated December 19, 2005
upholding the proposed removal, with an effective date of January 6, 2006.
Complainant appealed the removal to the Merit Systems Protection Board
(MSPB) on or about January 11, 2006.
The FAD dismissed claims 1 and 2 on the grounds that complainant failed
to timely seek EEO counseling. He contacted an EEO counselor regarding
these claims on December 6, 2005. On appeal, complainant confirms that
since October 21, 2005, he has not been on postal premises.
An aggrieved person must seek EEO counseling within 45 days of the date
of the alleged discriminatory action, or in the case of a personnel
action, within 45 days of the effective date of the action. 29 C.F.R. �
1614.105(a)(1). Under 29 C.F.R. � 1614.105(a)(2), an agency shall extend
the 45 day time limit to initiate EEO counseling where an individual
shows that he was not notified of the time limit and was not otherwise
aware of it, or for other reasons considered sufficient by the agency
or the Commission.
Complainant contends that he was not aware of the procedure for filing an
EEO complaint. The signed counselor's report, however, represents that
it was verified on October 14, 2005 that "EEO Poster 72" was on display
in complainant's facility, and a letter by an agency official indicates
"Poster 72" was on display in complainant's facility around May and
June 2004. The letter indicates that Poster 72 is written pursuant to
29 C.F.R. � 1614.102(b). That regulation requires posters to publicize
to all employees information about the time limit to contact an EEO
counselor and contact information for doing so. Given this, we find
complainant was notified of the time limit to seek EEO counseling.
Complainant also argues that that he was too ill to timely contact an
EEO counselor. He points to letters from his physician to support this.
In a November 2, 2005 letter, the physician writes complainant was in his
office on October 20, 2005 for severe stress, elevated blood pressure,
anxiety and mental disturbances, and he was severely impaired and not his
normal self. We note, however, that complainant had an emotional dispute
with a supervisor on October 20, 2005 leading to promptly being taken
off duty, and the record does not show he was incapacitated from timely
contacting an EEO counselor during whole 45 day time limit for doing so.
In fact, the October 20, 2005 letter from complainant's physician opined
he could resume work on October 25, 2005.
The decision in the FAD to dismiss claims 1 and 2 is affirmed.
The FAD dismissed claim 3 on the grounds that complainant appealed his
removal action to the MSPB prior to filing his complaint. Complainant
filed his appeal with the MSPB around January 11, 2005, and filed his
complaint in March 2006. EEOC Regulation 29 C.F.R. �
1614.107(d) requires that an agency dismiss a complaint or portion
thereof where a complainant files an appeal with the MSPB and has elected
to pursue the non-EEO process. Such is the case here. The decision to
remove complainant informed him of the election procedures and complainant
filed his appeal with the MSPB prior to filing his EEO complaint.
29 C.F.R. � 1614.302(b). The proposed removal action merges with
the removal action, which was appealed to the MSPB.
The agency dismissed claim 4 for failure to timely seek EEO counseling.
Complainant sought EEO counseling regarding this claim on April 17, 2006.
EEOC Regulation 29 C.F.R. � 1614.605(b) provides that "the
complainant...,if employed by the agency and otherwise in a pay status,
shall be on official time, regardless of their tour of duty, when their
presence is authorized or required by the agency or the Commission during
the investigation, informal adjustment, or hearing on the complaint."
The Commission has held that it has the authority to remedy a violation of
29 C.F.R. � 1614.605 without a finding of discrimination. The Commission
has held that such a claim should not be processed in accordance with 29
C.F.R. � 1614.108 since the focus is not on the motivation, but rather
the justification on why the complainant was denied a reasonable amount
of official time.
Upon review, however, we find that the FAD properly dismissed
complainant's claim for official time because he was not entitled to
official time. He had not entitlement because he was not in pay status
with the agency when the mediation occurred.
Accordingly, the FAD's dismissal of complainant's complaint is 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
September 28, 2006
__________________
Date
2
01A63343
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
4
01A63343