0120111256
05-24-2011
Jonathan H. Cross, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Southeast Area), Agency.
Jonathan H. Cross,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Southeast Area),
Agency.
Appeal No. 0120111256
Agency No. 4H-370-0180-10
DECISION
Complainant filed a timely appeal with this Commission from the
Agency's decision dated November 17, 2010, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a City Carrier, T-6 at the Agency’s Kingsport Post Office facility
in Kingsport, TN. He filed a formal complaint alleging that he was
discriminated against based on his disability (associated with spouse
who had a disability) when he was terminated in May or June 2009 for
changing a date on Family and Medical Leave Act (FMLA) paperwork.
The Agency dismissed the complaint for failure to timely initiate EEO
counseling. It reasoned that Complainant did not initiate EEO counseling
until September 15, 2010, long after the 45 calendar day time limit.
In an intake form and his complaint, Complainant contended that he
could not confirm discrimination until September 2010, when he learned
of a June 2010, grievance against three managers for falsifying official
postal documents. He submitted a copy of the June 2010 grievance form,
which alleged management intentionally deleted clock rings over at
least the past 2½ years, depriving pay to carriers for work provided.
Complainant contended that the three managers were “busted” to
carrier status, not removed.
In dismissing the complaint, the Agency found that Complainant had a
reasonable suspicion of discrimination when he filed a grievance on
his removal which was denied on May 26, 2009. It also found that the
discovery of a new comparison employee does not give rise to a new claim.
CONTENTIONS ON APPEAL
Complainant filed an appeal statement with the Agency, which is included
in the record. He writes that a person needs to know of an event similar
to his own was handled differently to CLAIM discrimination (emphasis in
original), but to PROVE discrimination (emphasis in original), a person
needs to know of similar events before and after his own had different
outcomes. Complainant writes that many serious infractions occurred
before his termination, but he could not prove discrimination until
he knew about another serious event after his termination. He gives
examples of an employee who falsified his time cards to get longer
lunches, another who falsified leave documents, and a third who changed
bulk mail labels so the Agency could not determine mail was delayed.
He argues that his offense was not serious did not justify removal,
and that he was removed for missing work to care for his spouse.
In opposition to the appeal, the Agency urges the Commission to affirm
its dismissal.
ANALYSIS AND FINDINGS
An aggrieved person must seek EEO counseling within 45 days of
the date of the alleged discriminatory action, or in the case of a
personnel action, within 45 days of the effective date of the action.
29 C.F.R. § 1614.105(a)(1) & .107(a)(2). The time limit to seek
EEO counseling shall be extended when an individual shows he did not
know and reasonably should not have known that the discriminatory
action or personnel action occurred. 29 C.F.R. § 1614.105(a)(2).
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.
Applying the above case law, we find that Complainant had a reasonable
suspicion of discrimination long prior to contacting an EEO counselor
on September 15, 2010. He filed a grievance on the matter around May
2009, believed his offense was not serious and did not justify removal,
and that he was removed for missing time from work to take care of his
wife’s disability. He also cites numerous examples of infractions by
other employees, suggesting they occurred prior to his termination and
did not result in removals. The events in the June 2010 grievance form
were supportive facts of his prior reasonable suspicion of discrimination.
Accordingly, the Agency’s decision to dismiss the complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 (S0610)
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 (Z0610)
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
May 24, 2011
__________________
Date
2
0120111256
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120111256