Brian E. Sipple, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionNov 4, 2004
01A43420_r (E.E.O.C. Nov. 4, 2004)

01A43420_r

11-04-2004

Brian E. Sipple, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Brian E. Sipple v. United States Postal Service

01A43420

November 4, 2004

.

Brian E. Sipple,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A43420

Agency No. 4B-140-0009-04

DECISION

Complainant filed this appeal with the Commission from an April 6,

2004 agency decision dismissing his complaint pursuant to 29 C.F.R. �

1614.107(a)(2), for failure to contact an EEO Counselor in a timely

manner.

The agency defined the complaint as whether complainant was subjected to

discrimination on the basis of disability when on September 29, 2003,

complainant was offered a limited duty assignment, effective October

4, 2003, which was beyond his medical limitations and resulted in

complainant's placement in a non-duty furlough status.

In dismissing the complaint, the agency noted that complainant had

been accommodated by working four hours daily since March 17, 2003, and

that complainant was offered a full eight-hour limited duty assignment,

effective October 4, 2003. The agency stated that complainant should have

suspected discrimination when he was offered the limited duty assignment.

The agency further stated that complainant should have contacted an

EEO Counselor within 45 days of October 7, 2003, the date when the

agency stated that it denied reasonable accommodation by informing

complainant that he was not to report to work. The agency concluded

that when complainant contacted an EEO Counselor on December 18, 2003,

his contact was untimely.

On appeal, complainant asserts that because the agency Injury Compensation

Specialist assured him repeatedly that he would be accommodated and

compensated he was misled into delaying EEO Counselor contact until

December 18, 2003, when it became apparent to him that something was

amiss.

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 also provide that the agency or the Commission shall

extend the time limits when the individual shows that he or she was

not notified of the time limits and was not otherwise aware of them,

that he or she did not know and reasonably should not have known that

the discriminatory matter or personnel action occurred, that despite

due diligence he or she was prevented by circumstances beyond his or her

control from contacting the EEO Counselor within the time limits, or for

other reasons considered sufficient by the agency or the Commission.

See 29 C.F.R. � 1614.105(a)(2). The time limits are also subject to

waiver, estoppel and equitable tolling. See 29 C.F.R. � 1614.604(c).

The record reveals that on March 17, 2003, after surgery for a work

injury, complainant returned to work in a limited duty assignment with

restrictions. In a September 29, 2003 letter, the Injury Compensation

Specialist informed complainant that he was to begin a new limited

duty assignment which changed complainant's usual work restrictions.

The new assignment was to begin on October 4, 2003. The record reveals

that complainant signed a rejection of the assignment on October 3, 2003.

The record further reveals that on October 6, 2003, complainant, who was

still working in the limited duty assignment that he had returned to after

the surgery, was directed by his manager not to report to work until his

restrictions and job assignment could be clarified. In an October 29,

2003 letter to complainant, the Injury Compensation Specialist noted that

complainant had declined the limited duty assignment and that he was being

provided with another limited duty assignment with an effective date

of November 1, 2003. The record reveals that complainant received the

October 29, 2003 letter on October 31, 2003, and accepted the alternative

limited duty assignment "under protest" on November 3, 2003. The record

further reveals that complainant did not work for the agency from October

7, 2003, until his return on November 5, 2003. The record discloses

that complainant initiated EEO Counselor contact on December 18, 2003.

The Commission finds that the agency's dismissal of the complaint was

proper and that complainant has not provided justification sufficient

to extend the time period. Complainant knew by October 3, 2003,

that the agency had denied him an accommodation by changing his

assignment. See Moore v. United States Postal Service, EEOC Appeal

No. 01A34361 (February 19, 2004). However, complainant continued to

work in his usual limited duty assignment through October 6, 2003.

We find therefore that complainant had 45 days therefrom to initiate

EEO Counselor contact. Accordingly, when complainant contacted the EEO

Counselor on December 18, 2003, the contact was beyond the requisite time

period and therefore untimely. The Commission is not persuaded that

the agency misled complainant such that complainant delayed initiating

contact. Complainant's informal efforts to obtain an accommodation

within his restrictions did not toll the time period for timely contact.

The Commission has consistently held that utilization of internal agency

procedures, union grievances, and other remedial processes does not toll

the time limit for contacting an EEO Counselor. See Hosford v. Department

of Veterans Affairs, EEOC Request No. 05890038 (June 9, 1989).

The agency's decision 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

November 4, 2004

__________________

Date