0120090785
03-30-2009
Marvin J. Wade, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Marvin J. Wade,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120090785
Agency No. 4B060010408
DECISION
Complainant filed a timely appeal with this Commission from the
agency's decision dated November 21, 2008, 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.
At the time of the events at issue, complainant was employed as a City
Carrier at the agency's Milford, Connecticut Post Office. In his EEO
complaint, complainant alleged that he was subjected to discrimination
on the basis of disability (diabetes) when:
1. On October 27, 2003 his driving privileges were revoked;
2. On August 11, 2008, his postmaster told complainant there was no more
work for him and;
3. On August 13, 2008, after providing updated medical documentation,
complainant was allowed to work full duty without restrictions.
In its final decision dated November 21, 2008, the agency dismissed
claim (1) of the complaint, pursuant to 29 C.F.R. � 1614.107(a)(2), for
untimely EEO Counselor contact. The agency also dismissed claims (2)
and (3) for failure to state a claim in accordance with EEOC Regulation
29 C.F.R. � 1614.107(a)(1). The instant appeal followed.
Claim (1)
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 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.
The record discloses that the alleged discriminatory event in claim
(1) occurred on October 27, 2003, but complainant did not initiate
contact with an EEO Counselor until August 18, 2008, which is beyond
the forty-five (45) day limitation period.
On appeal, complainant has presented no persuasive arguments or
evidence warranting an extension of the time limit for initiating
EEO Counselor contact. The record indicates that in October 2003,
complainant was advised that due to his diabetes, he could no longer
drive a postal vehicle. He was further told to bring in a note from
his doctor advising the agency that his diabetes levels had regulated
and he could safely operate a postal vehicle. The record indicates
that complainant failed to provide the requested documentation until
he was told on August 11, 2008, that the agency no longer had work for
him within his restrictions. Complainant alleges, however, that he
was capable of driving in 2003 when his driving privileges were first
suspended and that he provided an acceptable doctor's note at that time.
Complainant claims that while agency official found his 2003 doctor's
note to be unacceptable, he provided essentially the same note which
was accepted by agency officials on August 13, 2008.
Upon review, the Commission finds that complainant had or should have
had a reasonable suspicion of discrimination in October 2003, when he
claims that his initial doctor's note was not accepted. Complainant has
failed to offer any persuasive evidence to justify his untimely counselor
contact and the agency's dismissal is affirmed.
Claims (2) and (3)
After careful review of the record, we also conclude that the agency
correctly determined that complainant failed to allege that he suffered
any harm to a term, condition or privilege of his employment with
respect to claims (2) and (3). The regulation set forth at 29 C.F.R. �
1614.107(a)(1) provides, in relevant part, that an agency shall dismiss a
complaint that fails to state a claim. An agency shall accept a complaint
from any aggrieved employee or applicant for employment who believes
that he or she has been discriminated against by that agency because of
race, color, religion, sex, national origin, age or disabling condition.
29 C.F.R. �� 1614.103, .106(a). The Commission's federal sector case
precedent has long defined an "aggrieved employee" as one who suffers
a present harm or loss with respect to a term, condition, or privilege
of employment for which there is a remedy. Diaz v. Department of the
Air Force, EEOC Request No. 05931049 (April 21, 1994). Even accepting
complainant's allegations as true, there is no indication that complainant
was ever actually denied work in August 2008-it appears that complainant
was told there was no light duty work available if he could not drive.
He immediately provided updated medical documentation that indicated he
was able to drive and he was returned to full duty as a city carrier.
Accordingly, the agency's final decision dismissing complainant's
complaint is affirmed for the reasons set forth herein.
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
March 30, 2009
__________________
Date
2
0120090785
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
4
0120090785