0120081866
08-28-2008
Craig J. Nowak, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Craig J. Nowak,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120081866
Agency No. 4J530000808
DECISION
Complainant filed a timely appeal with this Commission from the
agency's decision dated February 14, 2008, dismissing his complaint
of unlawful employment discrimination in violation of Section 501
of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq. In his complaint, complainant alleged that he
was subjected to discrimination on the basis of disability (foot) when,
on June 14, 2007, complainant was sent home for wearing a walking cast
with an open toe.
The agency dismissed the claim for untimely EEO Counselor contact.
Specifically, the agency found that complainant did not contact an EEO
Counselor until October 26, 2007, which is beyond the 45-day regulatory
limit.
Complainant argues that his EEO Counselor contact was timely for two
reasons: complainant contends that he only developed reasonable suspicion
"in October 2007" when he saw another coworker on the workroom floor
wearing the same open-toed walking cast; and as regards the agency's
contention that EEO posters notifying employees of the regulatory time
limits are posted on display throughout the facility, complainant was
unaware of the regulatory time limits because contrary to the FAD,
such posters were not in fact posted throughout the facility.
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.
Following a review of the record, we find that complainant has not
established that he reasonably suspected discrimination in October 2007.
In this regard, we note that complainant has not shown how witnessing a
coworker with an open-toed cast led complainant to reasonably suspect
he was being discriminated against based on his claimed disability.
If both complainant and the coworker had the same disability, and the
coworker was not sent home, then whatever alleged disparate treatment
occurred, it could not have been based on management's discriminatory
animus towards that disability. Nor has complainant claimed any other
basis of discrimination.
Complainant next argues that, contrary to the FAD, EEO posters are
not posted throughout the facility and he was unaware of the regulatory
time-limits. Complainant contends that he spoke to one supervisor (RMO1)
in June and another (RMO2) in July to find out how to file a complaint,
which, incidentally, contradicts his contention that he did not develop
reasonable suspicion until October 2007. Complainant contends that
neither RMO1 nor 2 was able to locate any EEO posters in the facility,
and they had to look up the information in the internet, which they then
provided to complainant. Complainant has included statements from both
supervisors, as well as a colleague, who all corroborated this contention.
(See Complainant's Appeal Brief). While the statements are troubling,
the fact remains that complainant was provided the information on filing
a complaint in June 2007. Accordingly, we find that his October 26,
2007 EEO Counselor contact was untimely and we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (S0408)
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 (Z0408)
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
August 28, 2008
__________________
Date
2
0120081866
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
4
0120081866