01A44647_r
11-29-2004
Michael R. Elberling, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Michael R. Elberling v. United States Postal Service
01A44647
November 29, 2004
.
Michael R. Elberling,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A44647
Agency No. 1E-809-0001-04
DECISION
Complainant filed this appeal with the Commission from a May 21, 2004
agency decision dismissing claims 1 through 6 of his complaint pursuant
to 29 C.F.R. � 1614.107(a)(2), for untimely EEO Counselor contact and
claims 7 through 9 pursuant to 29 C.F.R. � 1614.107(a)(1) for failure
to state a claim.
In his complaint, complainant alleged that he was subjected to
discrimination on the basis of disability when he was harassed by his
supervisor when the following occurred:
1. Since 2001, complainant's supervisor did not provide complainant
with copies of PS Form 3971 (Request for or Notification of Absence);
2. On October 23, 2001, complainant's supervisor never informed
complainant of stand-up talks which resulted in complainant missing the
anthrax stand-up;
3. On January 30, 2002, and January 31, 2002, complainant's supervisor
did not give complainant his scheduled sick leave;
4. In spring 2002, complainant's supervisor ignored complainant's
requests for copies of PS Form 3971;
5. On February 27, 2003, complainant was given an investigative
interview regarding attendance;
6. In pay period 19 (beginning 8/25/03 and ending 9/5/03) in fiscal year
(FY) 2003, complainant's supervisor charged complainant with 20 hours of
annual leave instead of the leave without pay that complainant requested;
7. On September 12, 2003, complainant's supervisor looked at complainant
with disdain after complying with the supervisor's request to initial
complainant's veteran's check;
8. In September 2003, complainant's supervisor failed to inform
complainant of his transfer, although complainant's new supervisor
provided complainant with the information; and
9. On unspecified dates, complainant's supervisor would walk away from
complainant rolling his eyes.
The Commission finds that the overall complaint fails to state a
claim of harassment. The agency's alleged conduct was not sufficiently
severe or pervasive to alter the conditions of complainant's employment.
See Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993). We find
that allegations 1, 2, 4, 5, 7, 8, and 9, fail to state separate claims
since there is no loss or harm to a term, condition, or privilege of
employment for which there is a remedy. See Diaz v. Department of the
Air Force, EEOC Request No. 05931049 (April 21, 1994). However, we
find that allegations 3 and 6 give rise to independent claims because
the allegations constitute a personal deprivation sufficient to render
complainant aggrieved.
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the EEO 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 Ball v. United States Postal Service, EEOC
Request No. 05880247 (July 6, 1988). Thus, the limitations period is
not triggered until a complainant reasonably suspects discrimination,
but before all the facts that support a charge of discrimination have
become apparent.
The EEO Counselor's Report reflects that complainant initiated EEO
Counselor contact on October 22, 2003. Complainant's EEO Counselor
contact regarding claim 3 was untimely, because the contact occurred
more than 45 days beyond January 31, 2002. Complainant has not offered
adequate justification to extend or waive the time limitation. Regarding
claim 6, complainant specifically states that he did not receive his pay
for pay period ending September 5, 2003 until September 12, 2003, and
that he received his pay stub on September 11, 2003.<1> At the earliest,
complainant would have had a reasonable suspicion of discrimination on
September 11, 2003, when he received his pay stub. The agency has not
shown that complainant should have reasonably suspected discrimination
prior to September 11, 2003. Accordingly when complainant contacted on
October 22, 2003, his contact was timely.
Accordingly, the agency's decision dismissal of claims 1, 2, 3, 4, 5,
7, 8, and 9 is AFFIRMED. The agency's dismissal of claim 6 is REVERSED
and we REMAND claim 6 to the agency for further processing in accordance
with this decision and the Order herein.
ORDER (E0900)
The agency is ordered to process the remanded claims in accordance with
29 C.F.R. � 1614.108. The agency shall acknowledge to the complainant
that it has received the remanded claims within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue
to complainant a copy of the investigative file and also shall notify
complainant of the appropriate rights within one hundred fifty (150)
calendar days of the date this decision becomes final, unless the matter
is otherwise resolved prior to that time. If the complainant requests a
final decision without a hearing, the agency shall issue a final decision
within sixty (60) days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 (T0900)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. In the alternative, you may file a civil action after
one hundred and eighty (180) calendar days of the date you filed your
complaint with the agency, or your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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
November 29, 2004
__________________
Date
1On appeal, complainant used the year 2000,
and not 2003, as identified in the agency's decision. This use appears
to be an inadvertent error.