John D. Anderson, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMar 10, 2005
01a51190 (E.E.O.C. Mar. 10, 2005)

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.