0120090264
04-03-2009
Richard A. Simon, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Richard A. Simon,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120090264
Agency No. 4G-752-0036-08
DECISION
Complainant filed a timely appeal with this Commission from a final agency
decision dated September 29, 2008, 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., Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act
of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
During the relevant period, complainant worked as a Carrier at a Texas
facility of the agency. On October 22, 2007, complainant initiated
contact with an EEO Counselor alleging that the agency subjected him to
a hostile work environment on the bases of race (Caucasian), sex (male),
religion (Jewish), color (white), disability (neck, back and shoulder
injury), age (over 40), and reprisal for prior protected EEO activity
when: (1) it failed to pay complainant for 48 hours of vacation leave
in pay periods 15 and 16 of 2006, (2) it failed to issue complainant
a quarterly report on March 15, 2007, (3) on September 4, 2007, an
agency nurse violated his privacy by contacting his doctor about his
CA-17 medical report without his permission, and (4) in September 2007,
it allowed complainant's coworkers to harass him. Subsequently, in a
formal EEO complaint dated September 2, 2008, complainant reiterated the
above allegations, added the basis of national origin (unspecified), and
added that the agency subject him to harassment when (5) complainant's
supervisor (S1) yelled and acted violently toward him and tried to
provoke him to anger, (6) it sent him home on March 1, 2008 and his
leave request was pulled from his hand, and (7) S1 falsified his clock
rings on various occasions.
In its September 29 final decision, pursuant to 29 C.F.R. � 1614.107(a),
the agency dismissed (1) and (2) for untimely EEO contact; (6 - being sent
home) for failure to raise with an EEO Counselor and thereby untimely EEO
contact by raising the matter in September 2008 in the formal complaint;
(3), (4), (5), and (6 - snatching of leave request) for failure to state a
claim; and (7) for not raised with an EEO counselor. The instant appeal
from complainant followed.
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. Regarding (1) and (2), the record discloses that the alleged
discriminatory events occurred in mid-2006 and March 2007, respectively;
and complainant initiated contact with an EEO Counselor on October
22, 2007, which is outside the forty-five (45) day limitation period
required by 29 C.F.R. �� 1614.105(a)(1) & .107(a)(2). The agency also
dismissed (6) as untimely as the first time complainant raised it was
in the September 3, 2008 complaint, more than six months from when he
was allegedly sent home. Moreover, to the extent that complainant is
alleging a pattern of harassment, we conclude that complainant has not
alleged an adequate connection between the incidents in (1), (2) and (6),
and the timely raised incidents that would indicate a single claim of
ongoing harassment such that the timeliness of these allegations would
not be in issue. In sum, we find that complainant failed to present
persuasive arguments to warrant waiver of the regulatory time-frame.
As to the remaining allegations (4), (5) and (7), we find that the
incidents fail to state a claim under EEOC regulations. Complainant
failed to show that he suffered harm or loss with respect to a term,
condition, or privilege of employment for which there is a remedy1 or that
the actions as alleged are 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 also agree that, based on the record,
complainant failed to present (7) for counseling prior to filing a formal
complaint, as is required by 29 C.F.R. � 1614.105(a)(1).
Finally, in (3), complainant alleged a violation of the Rehabilitation Act
and such could render him aggrieved.2 See EEOC Enforcement Guidance on
Disability-Related Inquiries and Medical Examinations of Employees under
the Americans with Disabilities Act (ADA), EEOC Notice No. 915.002 (July
26, 2000). An employer may make disability-related inquiries or require
medical examinations of employees in limited circumstances -- only if
it is job-related and consistent with business necessity. 29 C.F.R. ��
1630.13(b), .14(c). However, there is insufficient evidence in the
record upon which to determine if the agency's inquiry was appropriate.
Hence, we must remand (3) to the agency for further investigation and
processing.
Based on the above, we AFFIRM the agency's dismissal of (1), (2), and
(4) - (7) individually and as a claim of hostile work environment.
Conversely, we REVERSE its dismissal of (3) and REMAND this matter to
the agency for a supplemental investigation as ordered below.
ORDER (E0408)
The agency is ordered to process the remanded claim (concerning the
allegation that the agency nurse improperly sought complainant's medical
information) in accordance with 29 C.F.R. � 1614.108 et seq. 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 (K1208)
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 77960, Washington,
DC 20013. 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 (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 (T0408)
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 (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
April 3, 2009
__________________
Date
1 See Diaz v. Department of the Air Force, EEOC Request No. 05931049
(April 21, 1994).
2 The agency characterizes complainant's allegation as asserting a
violation of the Privacy Act. To that extent, the agency is correct
that Privacy Act violations cannot be adjudicated in the EEO complaints
process. However, in this case, we determine that complainant alleges
a violation of the Rehabilitation Act which is properly within our
jurisdiction.
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0120090264
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120090264