01A02384_r
07-05-2002
Richard Smith, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Richard Smith v. United States Postal Service
01A02384
July 5, 2002
.
Richard Smith,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A02384
Agency No. 1-K-222-0028-97
DECISION
Complainant filed a timely appeal with this Commission from a final
agency decision dated January 21, 2000.
Complainant initiated EEO Counselor contact on March 25, 1997.
Informal efforts to resolve his concerns were unsuccessful.
In a formal complaint dated May 10, 1997, complainant alleged that the
agency engaged in unlawful discrimination on the bases of race, sex,
and in reprisal for prior protected activity when:
On March 18, 1997, complainant's representative was denied a schedule
change to attend an EEOC hearing;
On March 18, 1997, in an EEOC hearing, a Labor Relations Specialist
and another agency officials stated, �the same excuse since 1992;� and
Agency officials failed to accommodate complainant from late 1992
through 1995.
In a final decision dated July 29, 1997, the agency dismissed
complainant's complaint for failure to state a claim. On appeal,
the Commission modified the agency's dismissal of claim 1; affirmed
the dismissal of claim 2; and reversed the dismissal of claim 3.
Regarding claim 1, the Commission determined that the agency properly
found that the matter raised therein did not state a claim of employment
discrimination; however, the Commission ordered the agency to show that
it has complied with the relevant provisions of EEO-MDO-110 requiring
agencies to adjust or rearrange a complainant's or a representative's
work schedule to coincide with EEO meetings or hearings if the meetings/
hearings are scheduled during normal work hours; or that it has
established a procedure to ensure future compliance. Regarding claim
3, the Commission vacated the dismissal of this claim and remanded the
claim to the agency. The Commission ordered the agency to obtain from
complainant a clearer statement of claim 3, because the agency's initial
decision failed to provide an explanation for dismissing complainant's
claim that the agency failed to accommodate him. Smith v. United States
Postal Service, EEOC Appeal No. 01976587 (May 26, 1999).
In the final decision that is the subject of this appeal, the agency
again dismissed claim 1, in this instance on the grounds of mootness.
Regarding claim 3, complainant clarified this claim in a statement dated
November 30, 1999. Therein, complainant claimed that he was the subject
of unlawful employment discrimination on the bases of race, sex, and in
reprisal for prior protected activity when:
On February 4, 1993, the agency failed to approve complainant's request
for a schedule change;
On May 20, 1993, complainant's request for a schedule change was denied
without anyone signing his PS Form 3189;
On June 18, 1993, complainant's request for a schedule change was denied;
On May 16, 1994, complainant's request for a schedule change was not
addressed by management, although the shop steward signed the form;
On July 25, 1994, another request for a schedule request was rejected
by the agency;
On August 13-19, 1994, a detail was granted to an automation clerk;
On September 29, 1994, complainant submitted another schedule change
request form and this was again rejected, although another employee
received a schedule change on September 6, 1994;
On October 14, 1994, complainant's request for a detail to Tour II
because of personal problems was denied, although another automation
clerk received a detail to Tour II;
Complainant lost a lot of time from work from late 1992 through 1995
due to neighborhood problems that caused him to fear for his family's
health, well-being and safety. The agency's failure to accommodate his
situation caused him to miss work.
The agency dismissed claim 3 on the grounds of untimely EEO Counselor
contact, finding that none of the enumerated matters occurred within
the 45-day time limitation for contacting an EEO Counselor.
Claim 1
The Commission has stated that a claim pertaining to the denial of
official time states a separately processable claim alleging a violation
of the Commission's regulations, without requiring a determination of
whether the action was motivated by discrimination. See Edwards v. United
States Postal Service, EEOC Request No. 059605179 (December 23, 1996).
In its decision of May 26, 1999, the Commission modified the agency's
dismissal of claim 1. Specifically, the Commission determined that the
agency correctly found that claim 1 does not state a claim of employment
discrimination; however, the Commission ordered the agency on remand to
place evidence in the record demonstrating that on March 18, 1997, it
complied with the requirements of EEO-MD-110 by rearranging or adjusting
the work schedule of complainant's representative to coincide with EEO
meetings on that date. On remand, the agency supplemented the record
with a copy of the agency's approval of a request for a temporary
schedule change by complainant's representative on March 18, 1997.
We find that the schedule change, effected for the purpose of allowing
the representative to attend an EEO meeting regarding complainant's
complaint, was proper. Consequently, we find that the agency complied
with the provisions of EEO-MD-110.
Claim 3
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.
Upon review, the Commission determines that the agency properly dismissed
claim 3. The record reveals that complainant initiated Counselor contact
for claim 3 on March 25, 1997. The actions in claim 3 occurred between
1993 through 1995, well beyond 45 days before complainant initiated
Counselor contact. On appeal, complainant fails to present any arguments
or evidence that would warrant an extension or waiver of the applicable
time limits. Consequently, we find that complainant initiated untimely
Counselor contact for claim 3.
Accordingly, the agency's dismissal of claim 3 is AFFIRMED.
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 5, 2002
__________________
Date