01A43117_r
09-27-2004
Robert J. Terragnoli, Complainant, v. John Ashcroft, Attorney General, Department of Justice, Agency.
Robert J. Terragnoli v. Department of Justice
01A43117
September 27, 2004
.
Robert J. Terragnoli,
Complainant,
v.
John Ashcroft,
Attorney General,
Department of Justice,
Agency.
Appeal No. 01A43117
Agency No. I-03-H044
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated March 18, 2004, 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. The agency defined the complaint
dated April 16, 2003, as alleging that complainant was subjected
to discrimination on the bases of sex (male) and disability when
complainant's disability retirement was approved effective December
18, 1999.
The agency dismissed the claim on the grounds that complainant failed
to timely contact an EEO Counselor. The agency argued that complainant
failed to contact the EEO Counselor until more than three years after
the effective date of his December 18, 1999 retirement.
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 first that the agency misdefined complainant's
complaint. Complainant is alleging that the agency discriminated against
him when:
On three occasions the agency failed to promote complainant.
The agency coerced complainant to accept disability retirement.
The agency failed to offer him a reasonable accommodation in lieu of
the December 18, 1999 disability retirement.
The agency attempted to receive medical records regarding complainant's
mental illness.
Complainant states that on October 28, 2002, while viewing the American
with Disabilities Act information on the internet, he became aware that
discrimination occurred. Complainant states that he learned that the
American with Disabilities Act mandates the agency to make an effort
for reasonable accommodation as an alternative to disability retirement.
According to complainant, he was not offered a reasonable accommodation
and was coerced into accepting disability retirement.
Regarding claims 1, 2, and 3, the Commission finds that the agency
properly dismissed complainant's complaint for untimely EEO Counselor
contact. We find that complainant had or should have had a reasonable
suspicion of unlawful employment discrimination more that 45-days prior to
his initial EEO contact of December 23, 2002. Complainant asserts that
he was unable to comply with the forty-five (45) day time limit because
of his mental disability. We have consistently held, in cases involving
physical or mental health difficulties, that an extension is warranted
only where an individual is so incapacitated by his condition that he
is unable to meet the regulatory time limits. See Crear v. United States
Postal Service, EEOC Request No. 05920700 (October 29, 1992); Weinberger
v. Department of the Army, EEOC Request No. 05920040 (February 21, 1992);
Hickman v. Department of the Navy, EEOC Request No. 05910707 (September
30, 1991); and Johnson v. Department of Health and Human Services, EEOC
Request No. 05900873 (October 5, 1990). There is insufficient evidence
in the record to prove that complainant was so incapacitated that he
was unable to assert his rights.
Regarding claim 4, 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). Complainant was not harmed
by the agency's attempts to receive his medical records. Therefore,
claim 4 was properly dismissed for failure to state a claim pursuant to
29 C.F.R. � 1614.107(a)(1).
Accordingly, the agency's dismissal of complainant's complaint 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
September 27, 2004
__________________
Date