0120100621
04-30-2010
Gilbert M. Miranda, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southwest Area), Agency.
Gilbert M. Miranda,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southwest Area),
Agency.
Appeal No. 0120100621
Agency No. 4G770023309
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated October 19, 2009, dismissing her 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.
At the time of the events at issue, complainant was employed by the agency
as a Labor Relations Specialist in Houston, Texas. In his EEO complaint,
complainant alleged that he was subjected to discrimination on the bases
of race (Mexican-American), national origin (Hispanic), sex (male), age
(57), and reprisal for prior protected EEO activity when:
1. On January 16, 2009, complainant learned that he would not be given
the opportunity to be detailed to the position of Labor Relations Manager;
and
2. On May 27, 2009, complainant learned that he was not selected for
the position of Manager of Labor Relations.
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints
of discrimination 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 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 further 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.
In claim 1, complainant alleges that he learned on January 16, 2009,
that he would not be given the opportunity to detail to the position
of Labor Relations Manager. Complainant has not indicated that he
was unaware of the time limitations for seeking timely EEO contact,
nor does he indicate that he was prevented by circumstances beyond his
control from contacting a counselor in a timely manner. The agency
indicates further that there are EEO posters containing relevant EEO
contact information on display at complainant's worksite. Consequently,
the agency determined that complainant had constructive knowledge of the
time limitations for timely contacting an EEO Counselor. On appeal,
complainant alleges that the agency's continued denial of the detail
opportunity has created an ongoing claim of discrimination making his
May 27, 2009 counselor contact timely.
Upon review, the Commission is not persuaded by complainant's assertions
on appeal. Specifically, the Commission finds that the January 16, 2009
denial was a discrete act which triggered complainant's duty to act in
order to preserve his rights on appeal. See Baldwin County Welcome Center
v. Brown, 466 U.S. 147, 151 (1984). ("One who fails to act diligently
cannot invoke equitable principles to excuse his lack of diligence).
Moreover, the Commission finds that complainant had a reasonable suspicion
of discrimination long before his counselor contact on May 27, 2009.
In claim 2, the agency dismisses, for failure to state a claim,
complainant's allegations of discrimination concerning the decision not to
select him for the position of Manager of Labor Relations. In its final
decision, the agency reasons that because there were only two applicants
for the position, the agency's selecting official determined that there
was not an adequate pool from which to make a selection for the position.
Consequently, the vacancy was closed and no one was selected to fill
the position.
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in
relevant part, that an agency shall dismiss a complaint that fails to
state a claim. An agency shall accept a complaint from any aggrieved
employee or applicant for employment who believes that he or she has been
discriminated against by that agency because of race, color, religion,
sex, national origin, age or disabling condition. 29 C.F.R. �� 1614.103,
.106(a). 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).
Applying these standards, we find that complainant has stated a viable
claim which requires further processing. The agency's articulation
of the reasons for his non-selection-that the selection process was
cancelled-addresses the merits of complainant's complaint without a
proper investigation as required by the regulations, and is irrelevant
to the procedural issue of whether he has stated a justiciable claim
under Title VII. See Osborne v. Department of the Treasury, EEOC Request
No. 05960111 (July 19, 1996); Lee v. United States Postal Service, EEOC
Request No. 05930220 (August 12, 1993); Ferrazzoli v. United States
Postal Service, EEOC Request No. 05910642 (August 15, 1991).
Accordingly, the agency's final decision dismissing complainant's
complaint is affirmed in part and reversed in part for the reasons
set forth herein. The complaint is remanded to the agency for further
processing in accordance with the following Order.
ORDER (E0408)
The agency is ordered to process the remanded claim (claim
2: non-selection) 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 (K0408)
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 19848,
Washington, D.C. 20036. 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 (R0408)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. 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 filed your appeal with the
Commission. 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. 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 30, 2010
__________________
Date
2
0120100621
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120100621