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