0120093042
01-04-2010
Michael W. Fontaine, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Northeast Area), Agency.
Michael W. Fontaine,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Northeast Area),
Agency.
Appeal No. 0120093042
Agency No. 4B028003109
DECISION
Complainant filed a timely appeal with this Commission from the
agency's decision dated June 5, 2009, dismissing his 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. Upon review, the Commission
finds that complainant's complaint was properly dismissed pursuant to
29 C.F.R. � 1614.107(a)(2), for untimely EEO Counselor contact. In his
complaint, complainant alleged that he was subjected to discrimination
on the bases of disability (seizure disorder) and reprisal for prior
protected EEO activity
1. From November 10, 2003 to June 2005, complainant was not provided a
reasonable accommodation in that he was assigned lengthy walking routes,
not allowed to take breaks and yelled at by co-workers because complainant
was making more work for them;
2. From June 2005 to February 2006, complainant was not provided a
reasonable accommodation for a wrist and shoulder condition. Complainant
alleges that on a daily basis he was driven to a relay box and made to
walk the route;
3. In June 2008, complainant alleges that he was forced to take a lower
level position as a janitor;
4. From June 2008 to January 2009, complainant was held to a higher
standard of work performance than other janitors and threatened with
discipline and harassed by co-workers;
5. On January 15, 2009, complainant was forced to resign or be fired and
6. On April 28, 2009, the agency thwarted his unemployment compensation
claim by stating that complainant voluntarily resigned.
The agency dismissed claims 1-5 for untimely EEO counselor contact.
Specifically, the agency determined that complainant contacted the EEO
counselor on March 23, 2009, in excess of the 45-day limitation period.
The agency also noted that complainant was, or should have been aware
of the time limits since EEO posters were on display at complainant's
worksite.1 The agency also concluded that the incidents described by
complainant in claims 1-5 above were isolated and discrete acts which
should have triggered complainant's awareness of the duty to seek
counseling, and therefore did not constitute a continuing violation.
On appeal, complainant's attorney continues to argue that complainant's
complaint should be analyzed under the theory of continuing violation.
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 Commission finds that concerning claims 1-5, complainant had or should
have had a reasonable suspicion of discrimination with respect to the
agency's alleged denial of his request for reasonable accommodation.
Here, complainant does not suggest that he was unaware of the time
limitations for counselor contact. However, complainant alleges that due
to his physical and mental disabilities he was unaware that he had been
discriminated against until he met with an attorney. Complainant has
failed to present evidence that he was so incapacitated by a physical or
mental disability that he was unable to timely seek EEO Counselor contact.
Moreover, the agency has demonstrated that complainant had constructive
knowledge of the relevant time limitations for counselor contact.
In addition, the Commission finds that the events described in claims
1-5 were of a discrete and isolated nature which should have triggered
complainant's duty to seek counseling regarding his concerns.
The record discloses that the alleged discriminatory events occurred
between November 10, 2003 and January 15, 2009, but complainant did not
initiate contact with an EEO Counselor until March 23, 2009, 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. Accordingly, the
agency's final decision dismissing claims 1-5 as untimely is affirmed.
In claim 6, complainant alleges that the agency discriminated against
him by providing false information about his resignation in connection
with his claim for unemployment compensation. Upon review, we find
that claim 6 fails to state a claim. The Commission has long held that
a complainant cannot use the EEO process to lodge a collateral attack
on other forums. The proper forum for complainant to raise challenges
to actions which occur during the unemployment compensation process is
within that process itself. It is inappropriate now for complainant to
use the EEO process to collaterally attach the OWCP process. In that
regard we find that claim 6 was properly dismissed in accordance with EEOC
Regulation 29 C.F.R. � 1614.107(a)(1) for failure to state a claim.
Accordingly, the agency's decision dismissing the instant 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
January 4, 2010
__________________
Date
1 We note here that the agency has submitted copies of the relevant EEO
posters on display at complainant's worksite as well as an affidavit
from an agency official regarding the posting of EEO posters containing
relevant information regarding time restrictions for counselor contact.
??
??
??
??
2
0120093042
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
6
0120093042