01A42634
06-10-2004
Samuel Otero, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Samuel Otero v. United States Postal Service
01A42634
06-10-04
.
Samuel Otero,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A42634
Agency No. 1C-441-0142-03
DECISION
INTRODUCTION
Complainant filed an appeal with the Commission from a final order by
the agency dismissing complainant's complaint alleging discrimination
based on a physical disability (Back) as untimely for failure to comply
with the applicable time limits contained in 29 C.F.R. � 1614.107(a)(2).
ISSUE PRESENTED
Whether the agency properly dismissed complainant's complaint for
failure to comply with the time limitations pursuant to 29 C.F.R. �
1614.105(a)(2).
BACKGROUND
Complainant was an applicant at the time of the alleged discriminatory
action. Complainant alleged that he was discriminated against, based
on his physical disability (Back) by the Human Resource Specialist,
her agents and others unknown, when, on or about August 26, 2003, he
became aware that he could have been hired as a Mail Handler in May/June
of 1998. Complainant subsequently became a postal service employee
(Distribution Clerk) effective September 4, 1999. Complainant then
became a Mail Handler effective May 17, 2003. Complainant requested
pre-complaint processing on August 26, 2003, and filed a formal complaint
of discrimination with the agency on December 1, 2003.
The agency's final decision dismissed complainant's complaint on the
basis that it failed to comply with the applicable time limits contained
in 29 C.F.R. �� 1614.105(a)(1) and 1614.107(a)(2). Alternatively, the
agency also dismissed the complaint because the complainant failed to
demonstrate how a term, condition or privilege of his employment was
measurably harmed by the alleged discriminatory actions. Therefore,
he cannot be considered �aggrieved�, and his complaint was dismissed for
failure to state a claim in accordance with 29 C.F.R. � 1614.07(a)(1).
Complainant filed a timely appeal with the Commission on March 8, 2004.
ANALYSIS AND FINDINGS
Upon review, the Commission finds that complainant's complaint was
properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely
EEO Counselor contact. In his complaint, complainant alleged that
he was subjected to discrimination on the basis of disability when,
in May/June 1998 he was not offered the position of Mail Handler.
The record discloses that the alleged discriminatory event occurred
in May/June 1998, but complainant did not initiate contact with an EEO
Counselor until August 26, 2003, 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 complainant did not contact an EEO Counselor until
approximately five (5) years after the alleged discriminatory action.
After the complainant became a postal service employee (Mail Processor)
effective September 4, 1999, he waited approximately four (4) years
before contacting the EEO office. In addition, the complainant waited
one hundred and one (101) days before contacting an EEO Counselor after
becoming a Mail Handler effective May 17, 2003.
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. Complainant stated in the EEO Counselor inquiry report
that upon being converted from Distribution Clerk to Mail Handler on May
17, 2003 he questioned why he was not hired as a Mail Handler in May/June
of 1998. Even if we were to assume that this event triggered a reasonable
suspicion of discrimination, complainant then waited one hundred and
one days (101) before contacting an EEO Counselor on August 26, 2003.
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 agency has presented a supervisory affidavit indicating that an
EEO Poster with appropriate EEO Counselor contact timeframes was
clearly posted at complainant's work site. Furthermore, the EEO
Counselor's inquiry report indicates that an EEO Poster was on display
at complainant's work place. We find, therefore, that complainant had
constructive knowledge of the applicable time limits. See Santiago
v. United States Postal Service, EEOC Request No. 05950272 (July 6, 1995).
On appeal, complainant has presented no persuasive arguments or evidence
warranting an extension of the time limit for initiating EEO Counselor
contact.
Accordingly, the agency's final decision dismissing complainant's
complaint is affirmed.<1>
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
__________________
06-10-04
1 Although the Commission affirms the agency's
dismissal of the complainant's complaint due to untimely contact with an
EEO Counselor, we do not affirm the agency's finding that the complaint
failed to state a claim. The regulation set forth at 29 C.F.R. �
1614.107(a)(1) provides, in relevant part, that an agency shall dismiss a
complaint that fails to state a claim. An agency shall accept a complaint
from any aggrieved employee or applicant for employment who believes
that he or she has been discriminated against by that agency because of
race, color, religion, sex, national origin, age or disabling condition.
29 C.F.R. �� 1614.103, .106(a). The Commission's federal sector case
precedent has long defined an "aggrieved employee" as one who suffers
a present harm or loss with respect to a term, condition, or privilege
of employment for which there is a remedy. Diaz v. Department of the
Air Force, EEOC Request No. 05931049 (April 21, 1994). The complainant
contends that as a result of the agency's alleged discrimination, he
was deprived of the opportunity to accrue seniority as a Mail Handler
beginning in 1998. Therefore,
the complainant's complaint succeeded in demonstrating how a term,
condition, or privilege of his employment was measurably harmed by
the discriminatory action. Thus, had the complainant contacted an EEO
Counselor pursuant to EEOC Regulations, his allegation would state a
satisfactory claim.