0120093731
03-04-2010
Daniel Thomas, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Western Area), Agency.
Daniel Thomas,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Western Area),
Agency.
Appeal No. 0120093731
Agency No. 1E841000709
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated August 7, 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
the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq. In his complaint, complainant alleged that he
was subjected to discrimination on the bases of race (African-American),
sex (male), religion (non-Mormon), color (Black), age (45), and reprisal
for prior protected EEO activity when:
1. a sexual harassment report, dated April 1, 2005, and memoranda of
sexual harassment fact-findings, dated April 19, 2005 and September 28,
2006, were not expunged from complainant's records; and
2. on unspecified dates, threats, property damage and a hate crime were
not investigated.
The agency dismissed the instant complaint in accordance with EEOC
Regulation 29 C.F.R. � 1614.107(a)(1) on the grounds that it raised
claims previously decided by the agency.
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides that
the agency shall dismiss a complaint that states the same claim that
is pending before or has been decided by the agency or Commission.
It has long been established that "identical" does not mean "similar."
The Commission has consistently held that in order for a complaint to be
dismissed as identical, the elements of the complaint must be identical to
the elements of the prior complaint in time, place, incident, and parties.
See Jackson v. Department of the Air Force, EEOC Appeal No 01955890
(April 5, 1996) rev'd on other grounds EEOC Request No. 05960524 (April
24, 1997).
Here, the agency has provided the Commission with a copy of complainant's
previously filed complaint in Agency Case No. 1E-841-0022-08, the report
of the EEO Counselor regarding this prior complaint as well as a copy of
the agency's dismissal of the prior complaint filed with the agency on
October 29, 2008. Therein, complainant alleged discrimination based
on his race, color, religion, sex age and in reprisal for prior EEO
activity when (1) a sexual harassment report dated, April 1, 2005, and
memoranda of sexual harassment fact-findings, dated April 19, 2005 and
September 26, 2006, were not expunged, and (2) on unspecified dates,
threats, property damage and a hate crime were not investigated.
The Commission finds that the instant matter is identical to matters
previously raised by complainant and addressed by the agency. The record
further indicates that complainant did not appeal the agency's decision in
the prior complaint to the Commission's Office of Federal Operations.
The agency alternatively dismissed complainant's complaint as untimely in
accordance with EEOC Regulation 29 C.F.R. � 1614.107(a)(2). Specifically,
the agency found that complainant's contact of an EEO Counselor on April
15, 2009, regarding events occurring in 2005 and 2006 was untimely.
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. Complainant does not indicate that he was unaware of
the time limitations for seeking EEO contact in a timely manner or that
he was prevented for reasons beyond his control from timely contacting
an EEO Counselor.
On appeal, complainant does not address the agency's dismissal of
the instant complaint on the grounds that it raises issues previously
addressed by the agency. Instead, complainant argues that the claims in
the instant matter were timely raised. Other than his bare assertion,
complainant offers no persuasive argument or evidence in support of
his appeal.
Regarding complainant's contentions on appeal, the Commission agrees with
the agency's alternate reasons for dismissing complainant's complaint
as untimely pursuant to EEOC Regulation 29 C.F.R. � 1614.107(a)(2).
Upon review of the entire record in this matter, the Commission determines
that complainant's complaint is identical to complainant's previously
filed complaint addressed by the agency. Moreover, the Commission finds
that complainant failed to contact the EEO Counselor in a timely manner
regarding his concerns.
Accordingly, the agency's decision dismissing complainant's 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
March 4, 2010
__________________
Date
2
0120093731
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120093731