0120083786
08-07-2009
Jerry E. Davis, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Headquarters), Agency.
Jerry E. Davis,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Headquarters),
Agency.
Appeal No. 0120083786
Hearing No. 550-2008-00287X
Agency No. 6F-000-0011-05
DECISION
On August 26, 2008, complainant filed an appeal from the agency's August
7, 2008 final order concerning his equal employment opportunity (EEO)
complaint alleging 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.
The appeal is deemed timely and is accepted pursuant to 29 C.F.R. �
1614.405(a). For the following reasons, the Commission AFFIRMS the
agency's final order.
ISSUES PRESENTED
The issues presented are: (1) whether the EEOC Administrative Judge's
(AJ) dismissal of complainant's complaint for untimely EEO Counselor
contact was appropriate; (2) whether the EEOC Administrative Judge's (AJ)
issuance of a decision without a hearing on the merits of the complaint
was appropriate; and (3) whether complainant established that he was
subjected to disparate treatment.
BACKGROUND
At the time of the events giving rise to this complaint, complainant
worked as a Computer Systems Analyst/Programmer Associate at the agency's
San Mateo Integrated Business Systems Solution Center in San Mateo,
California. On August 17, 2005, complainant filed an EEO complaint
alleging, in pertinent part, that he was subjected to discrimination on
the bases of race (Caucasian), national origin (Jewish), sex (male),
religion (Jewish), color (White), disability (Adult Attention Deficit
Disorder and Sleep Apnea), age (51 at the time of the alleged incidents),
and in reprisal for prior protected EEO activity arising under the
Rehabilitation Act when, on May 12, 2003, May 23, 2003, and September 8,
2004, his medical information was disclosed.1
On September 2, 2005, the agency issued a Notice of Partial
Acceptance/Partial Dismissal of Formal EEO Complaint dismissing
the aforementioned claim for failure to state a claim pursuant to 29
C.F.R. � 1614.107(a)(1). On appeal, the Commission reversed the agency's
dismissal, finding that "[t]he claim of breach of confidentiality of
complainant's medical information by the agency states a claim because
if proven, this would likely violate the Rehabilitation Act's medical
information confidentiality requirements." Davis v. United States
Postal Service, EEOC Appeal Nos. 0120062330, 0120071292 (February 5,
2008).2 The Commission further found that the record was inadequately
developed to address this claim and remanded the claim back to the agency
for further processing in accordance with 29 C.F.R. � 1614.108. Id.
On remand, at the conclusion of the investigation, complainant was
provided with a copy of the report of investigation and a notice of his
right to request a hearing before an AJ. Complainant timely requested
a hearing. The AJ assigned to the case determined sua sponte that the
complaint did not warrant a hearing and, on July 11, 2008, issued a Notice
of Intent to Consider Issuance of a Decision Without a Hearing and Order.
On July 31, 2008, after receiving responses from both complainant and
the agency, the AJ issued an Order of Dismissal or, in the alternative,
Decision Granting Summary Judgment. The AJ's decision dismissed the
complaint for untimely EEO Counselor contact, and, assuming arguendo
the claim was timely, the AJ found that complainant failed to establish
that a violation of the Rehabilitation Act had occurred. The agency
subsequently issued a final order fully adopting the AJ's decision.
CONTENTIONS ON APPEAL
On appeal, complainant states that the timeliness of his multiple
complaints "is a matter of continuing tort." He argues that he had
called the agency regarding his complaints "a number of times," and he
was "[led] to believe that [his] complaints were acceptable by phone."
Complainant also argues that the AJ erred in finding no discrimination.
Specifically, he argues that the AJ failed to consider retaliation as
a basis for his claim and improperly denied his request for additional
discovery. He argues that further discovery was necessary to "show
the glaring imbalances of Asian hires and promotions as opposed to
the obvious lack of Caucasian promotions" and establish that the agency
subjected him to disparate treatment. Complainant states that the agency
repeatedly violated Title VII, the Rehabilitation Act, and the ADEA, and
agency officials denied him a reasonable accommodation despite having
sufficient medical documentation to assess his limitations. Finally,
complainant proposes a list of potential remedies he believes he is
entitled to in order to settle his EEO complaint.
In response, the agency urges the Commission to affirm its final decision.
The agency argues that the AJ properly dismissed the complaint for
untimely EEO Counselor contact. The agency also argues that there was no
evidence that agency officials made improper disclosures of complainant's
confidential medical information, and any additional discovery would not
have provided complainant with evidence to establish a violation of the
Rehabilitation Act.
ANALYSIS AND FINDINGS
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. McLouglin v. Department of the Treasury, EEOC Request
No. 05A01093 (April 24, 2003).
The Commission finds that complainant should have reasonably suspected
that discrimination occurred when agency officials allegedly disclosed his
confidential medical information in an improper manner between May 12,
2003 and September 8, 2004. However, complainant did not initiate EEO
contact regarding this claim until August 17, 2005, well after expiration
of the forty-five (45) day limitation.3 Consequently, we find that the
AJ properly concluded that complainant failed to initiate timely EEO
Counselor contact.
On appeal, complainant argues that his claim should be considered timely
because he had contested the agency's alleged discriminatory actions for
several years. Additionally, complainant alleges that he had previously
called the agency's EEO Office regarding his complaints. However, there
is no evidence that he ever initiated EEO contact regarding his claim of
improper medical disclosure prior to August 17, 2005. A review of the
record reveals that complainant alleged discrimination claims against
the agency in grievances and in a civil action prior to August 17, 2005,
including claims alleging that the agency was denying him promotions,
denying him a reasonable accommodation, and requiring him to submit
excessive medical documentation. However, these claims are separate and
distinct from his claim of improper disclosure of confidential medical
information, and he failed to demonstrate that he initiated timely EEO
contact on this claim. Moreover, there is no dispute that complainant
was aware of the 45 day time limit, as he indicates in the record and on
appeal that he had seen the agency's posted EEO notices. Therefore, we
find that complainant failed to provide adequate justification to warrant
an extension or waiver of the applicable time limit in this case.
Since we find the AJ's dismissal for untimely EEO Counselor contact
was proper, we do not address whether the AJ's issuance of a decision
without a hearing on the merits was appropriate or whether complainant
was subjected discrimination on the bases of race, national origin, sex,
religion, color, disability, age, and in reprisal for prior protected
EEO activity arising under the Rehabilitation Act. We also find that
the AJ did not abuse his discretion in denying complainant's request
for further discovery. We note that complainant's request for further
discovery had no bearing on the timeliness of his complaint and that
complainant had ample opportunity to address the timeliness of his
complaint before the AJ and on appeal.
Accordingly, the agency's final order adopting the AJ's dismissal for
untimely EEO Counselor contact is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 77960,
Washington, DC 20013. 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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with the Court 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
_____8/7/09_____________
Date
1 Complainant's complaint alleged three other claims of discrimination,
including that agency attorneys would not negotiate with him, that his
request for a mentor and reasonable accommodation was denied, and that
he was denied a promotion.
2 The Commission's decision also reversed the agency's dismissal of
complainant's reprisal claim(s). Id. However, the Commission's decision
considered reprisal as an additional basis and ultimately affirmed the
agency's final orders dismissing or finding no discrimination on all of
complainant's remaining claims. Id.
3 We concur with the AJ's determination that complainant did not raise a
claim of violation of medical confidentiality until he filed his formal
complaint on August 17, 2005.
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0120083786
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
6
0120083786