01a41327
07-07-2005
Marvin E. Easiley, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Pacific Area) Agency.
Marvin E. Easiley v. United States Postal Service
01A41327
July 7, 2005
.
Marvin E. Easiley,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Pacific Area)
Agency.
Appeal No. 01A41327
Agency No. 1F-942-0023-03
DECISION
Upon review, the Commission finds that complainant's complaint (alleging
Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as
amended, 29 U.S.C. � 791 et seq.) was properly dismissed pursuant to 29
C.F.R. � 1614.107(a)(2), for untimely EEO Counselor contact and failure
to state a claim. In his complaint, complainant alleged that he was
subjected to discrimination on the bases of disability and in reprisal
for prior EEO activity (arising under the Rehabilitation Act) when:
On February 27, 2002, he was issued a Notice of Proposed Removal -
Disability Separation;
On April 9, 2002, he was issued a Letter of Decision separating him from
the Postal Service, effective April 12, 2002, and
By letter dated May 20, 2003, the U.S. Office of Personnel Management
(OPM) notified him that his application for disability retirement had
been approved.
With regard to claims 1 and 2, we agree with the agency's final
determination. EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires
that an aggrieved person must initiate contact with a Counselor within
forty-five days of the date of matter alleged to be discriminatory or,
in the case of a personnel action, within 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 day limitation period is triggered. See Howard
v. Dep't of the Navy, EEOC Request No. 05970852 (Feb. 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 he was not notified of the
time limits and was not otherwise aware of them, that he did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence he was prevented
by circumstances beyond his control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
Complainant here maintains that the alleged discriminatory events
(claims 1 and 2) occurred on February, 27 and April 9, 2002, but he
did not initiate contact with an EEO Counselor until June 18, 2003,
which is beyond the forty-five (45) day limitation period. On appeal,
complainant argued that the delay was due to the APWU's attempts at
resolving the problem through the collective bargaining process. However,
the Commission has repeatedly held that �internal appeals, grievances,
or informal efforts to challenge an agency's adverse action do not toll
the running of the time to contact an EEO Counselor.� Foreman v. United
States Postal Serv., EEOC Appeal No. 01A44580, at 2 (Sept. 28, 2004).
Therefore, as complainant has presented no persuasive arguments or
evidence warranting an extension of the time limit for initiating EEO
Counselor contact, the agency's final decision dismissing claims 1 and
2 is affirmed.
The agency dismissed claim 3 for failure to state a claim because the
approval/denial of disability retirement is solely within the purview
of the Office of Personnel Management and not a decision which the
U.S. Postal Service has any authority or jurisdiction. We again agree
with this determination. EEOC's regulations authorize an agency to
dismiss an EEO complaint that fails to state a claim for which relief
can be granted. See 29 C.F.R. � 1614.107(a). The standard that must
be met to justify a dismissal on this ground is similar to that required
by the courts under Fed. R. Civ. P. 12(b)(6). See Cobb v. Dep't of the
Treasury, EEOC Request No. 0597007 (Mar. 13, 1997). Moreover, our case
law requires that the complainant be �aggrieved,� meaning, he must have
�suffered direct and personal deprivation at the hands of the employer.�
Gilyard v. Dep't of Energy, Appeal No. 01A01550 (June 9, 2003) (citing
Hobson v. Dep't of the Navy, EEOC Request No. 05891133 (Mar. 2, 1990)).
Under Section 107(a) the allegations in a complaint must be taken as true
and all reasonable inferences must be drawn in favor of the complainant.
See id. It is well settled that a complaint should not be dismissed
for failure to state a claim unless it appears beyond doubt that no
set of facts can be established that would entitle the complainant to
the relief sought in the complaint. See id. (citing Conley v. Gibson,
355 U.S. 40, 45-46 (1957)).
We do not find that the U.S. Postal Service made the decision to
grant complainant disability retirement. Furthermore, we do not
find evidence that the Postal Service has any authority to do so;
only OPM has this authority. As complainant challenges the approval
of disability retirement, complainant's claim is really with OPM and
not the Postal Service, and thus he raises an impermissible collateral
attack on a decision made by another agency. As such, we cannot find
that complainant has been �aggrieved� by the Postal Service's actions in
this regard, as the agency was not the one to cause a harm or loss with
respect to a term, condition, or privilege of his employment. See also
Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994).
Accordingly, we AFFIRM the final agency decision.
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
July 7, 2005
__________________
Date