0120140184
03-05-2014
Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southwest Area), Agency.
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southwest Area),
Agency.
Appeal No. 0120140184
Agency No. 4G-760-0079-13
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated September 20, 2013, dismissing a formal 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 the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
During the period at issue, Complainant worked as a Letter Carrier at the Agency's Southwest Station in San Angelo, Texas.
On May 17, 2013, Complainant initiated EEO Counselor contact. Informal efforts to resolve his concerns were unsuccessful.
On August 19, 2013, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency subjected him to discrimination on the bases of race and age when:
on May 17, 2013, he was notified by the union that he would not be compensated for annual leave lost in leave years 2011-2012.
The Agency dismissed the formal complaint on the grounds of untimely EEO Counselor contact, pursuant to 29 C.F.R. � 1614.107(a)(2). Specifically, the Agency determined that Complainant initiated EEO Counselor contact on May 17, 2013, which it found to be more than forty-five days after the alleged discriminatory event occurred. The Agency further determined that EEO Poster 72 was on display at the facility where Complainant worked, addressing the EEO counseling period, and informing employees to contact the Agency's EEO office if interested initiating EEO Counselor contact.
The Agency also dismissed the formal complaint on the alternative grounds of failure to state a claim, pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim. Specifically, the Agency found that the instant complaint is a collateral attack on the negotiated grievance process. The Agency stated that Complainant should have raised his allegations through the negotiated grievance process, not through the EEO process.
Complainant, on appeal, states "the last opportunity for correcting this discrimination ended May 17, 2013, with the Postmaster's denial of compensation for AL lost. This made filing of any further complaints impossible for me to correct by the deadline of 45 days. This discrimination occurred over a 2-year period. I waited to file this complaint until my last option was exhausted...my actions showed a willingness to work with my superiors to achieve a fair and just end without conflict."
The instant appeal followed.
ANALYSIS AND FINDINGS
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 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 record discloses that the alleged discriminatory events occurred in 2011 and 2012, but that Complainant did not initiate contact with an EEO Counselor until May 17, 2013, which is beyond the forty-five 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. While Complainant claimed that he attempted to work with Agency management compensation for lost annual leave without conflict, it is clear from the record that he had reasonable suspicion of discrimination at the time of the alleged discriminatory events. Complainant's initial attempt to resolve the issue with Agency management does not excuse an untimely EEO Counselor contact. The Commission has consistently held that use of agency procedures, union grievances, and other remedial processes does not toll the time limit for contacting an EEO Counselor. See Ellis v. United States Postal Service, EEOC Appeal No. 01992093 (November 29, 2000).
The Agency's final decision dismissing Complainant's formal complaint on the grounds of untimely EEO Counselor contact is AFFIRMED.1
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 (S0610)
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 (Z0610)
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
March 5, 2014
__________________
Date
1 Because we affirm the Agency's final decision to dismiss the instant formal complaint for the reason stated herein, we find it unnecessary to address alternative dismissal grounds.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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