01a51190
03-10-2005
John D. Anderson, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
John D. Anderson v. United States Postal Service
01A51190
March 10, 2005
.
John D. Anderson,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A51190
Agency No. 1J-603-0034-03
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision concerning his formal complaint of unlawful 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. and Section 501
of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq.
On April 21, 2003, complainant initiated EEO Counselor contact.
Informal efforts to resolve his concerns were unsuccessful.
In his formal complaint, filed on June 19, 2003, complainant claimed
that he was discriminated against on the bases of disability (asthma)
and in reprisal for prior protected activity. At the conclusion of
the investigation, complainant received a copy of the investigative
report and requested a hearing before an EEOC Administrative Judge
(AJ). Subsequently, complainant withdrew his request for a hearing and
requested to receive a final decision by the agency.
On October 25, 2004, the agency issued the instant final
decision. Therein, the agency determined that the formal complaint was
comprised of four claims, that were identified in the following fashion:
On March 22, 2002, the FLMA [Family Medical Leave Act] Coordinator denied
complainant's FMLA request;
On June 12, 2002, the FLMA Coordinator denied complainant's FMLA request;
On October 17, 2002, the FLMA Coordinator denied complainant's FMLA
request;
On March 2003, complainant received a letter from the FLMA Coordinator
stating that he did not qualify for FMLA.
The agency dismissed claims (1), (2), and (3) on the grounds of untimely
EEO Counselor contact.
The agency stated that the last discriminatory event regarding these
three claims occurred on October 17, 2002, and that complainant's April
21, 2003 EEO Counselor contact was beyond the 45-day time limit.
Regarding claim (4), the agency concluded that complainant failed to
establish a prima facie case of discrimination on the bases of reprisal
and disability. The agency found that even assuming that complainant
established a prima facie case of reprisal, complainant failed to rebut
the agency's articulated legitimate, non-discriminatory reason for its
actions.<1> The agency's FMLA Coordinator stated that pursuant to FMLA
regulations, complainant's was not eligible for FMLA because complainant
did not work 1,250 hours during the 12-month period immediately preceding
the request for leave.
Claims (1) - (3)
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 provide that the agency or the Commission shall extend
the time limits when the individual shows that she was not notified of the
time limits and was not otherwise aware of them, that she did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence she was prevented
by circumstances beyond her control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
The Commission finds that the agency properly dismissed claims (1) -
(3) on the grounds of untimely EEO Counselor contact. Because the last
discriminatory event occurred on October 17, 2002, complainant's April
21, 2003 contact was untimely. Complainant has failed to present adequate
justification pursuant to 29 C.F.R. �1614.105(a)(2), for extending the
limitation period beyond forty-five days.
Claim (4)
A claim of disparate treatment is examined under the three-part analysis
first enunciated in McDonnell Douglas Corporation v. Green, 411 U.S. 792
(1973). For complainant to prevail, he must first establish a prima
facie case of discrimination by presenting facts that, if unexplained,
reasonably give rise to an inference of discrimination, i.e., that
a prohibited consideration was a factor in the adverse employment
action. See McDonnell Douglas, 411 U.S. at 802; Furnco Construction
Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to
the agency to articulate a legitimate, nondiscriminatory reason for
its actions. See Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 253 (1981). Once the agency has met its burden, the
complainant bears the ultimate responsibility to persuade the fact finder
by a preponderance of the evidence that the agency acted on the basis of
a prohibited reason. See St. Mary's Honor Center v. Hicks, 509 U.S. 502
(1993).
This established order of analysis in discrimination cases, in which the
first step normally consists of determining the existence of a prima
facie case, need not be followed in all cases. Where the agency has
articulated a legitimate, nondiscriminatory reason for the personnel
action at issue, the factual inquiry can proceed directly to the third
step of the McDonnell Douglas analysis, the ultimate issue of whether
complainant has shown by a preponderance of the evidence that the
agency's actions were motivated by discrimination. See U.S. Postal
Service Board of Governors v. Aikens, 460 U.S. 711, 713-714 (1983);
Hernandez v. Department of Transportation, EEOC Request No. 05900159
(June 28, 1990); Peterson v. Department of Health and Human Services,
EEOC Request No. 05900467 (June 8, 1990); Washington v. Department of
the Navy, EEOC Petition No. 03900056 (May 31, 1990).
Assuming arguendo, that complainant has establish a prima facie case of
reprisal and disability discrimination, we determine that the agency
articulated legitimate, non-discriminatory reasons for its actions.
Here, the agency found that complainant was not eligible for FMLA after
determining that complainant have insufficient hours under Federal
regulations. The Commission determines that the agency articulated
legitimate, nondiscriminatory reasons for its action, which complainant
failed to show were a pretext for discrimination.
Accordingly, we AFFIRM the agency's decision to dismiss claims (1) -
(3) on the grounds of untimely EEO Counselor contact; and its finding
of no discrimination regarding claim (4).
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
March 10, 2005
__________________
Date
1The Commission will presume for purposes of
analysis only, and without so finding, that complainant is an individual
with a disability.