0120092935
11-10-2010
Lynn A. Farrell, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southwest Area), Agency.
Lynn A. Farrell,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southwest Area),
Agency.
Appeal No. 0120092935
Agency No. 4G-770-0155-09
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated June 10, 2009, 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 was employed as a Letter Carrier at the Agency's North Shepherd Post Office in Houston, Texas.
On March 4, 2009, Complainant initiated EEO Counselor contact. Informal efforts to resolve his concerns were unsuccessful.
On May 16, 2009, Complainant filed the instant formal complaint. Therein, Complainant claimed that the Agency subjected him to discrimination on the bases of race and age when:
on an unspecified date, he was not permitted to change his schedule; and on an unspecified date, he was issued a Letter of Warning.
In its June 10, 2009 final decision, the Agency dismissed Complainant's complaint pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim, finding that he was not aggrieved. The Agency determined that Complainant's allegations were vague and speculative. Specifically, the Agency noted that in the EEO Counselor's Report, the Counselor stated that management was unable to provide a copy of the subject Letter of Warning; and when Complainant was asked to provide a copy, he stated that management should have provided a copy; therefore, he was not going to do so.
On appeal, Complainant argued that the Agency was acting in bad faith "in an attempt to put an undo burden on me, the Complainant. It is not the Complainant's responsibility to keep managements records and the Agency should not be rewarded for being 'not able to provide a copy of the letter of warning,' which is mentioned by the agency on P.S. form 2570 as offered to be removed (copy enclosed)." In support of his assertions, Complainant submitted a copy of the EEO Counselor's Report, PS Form 2570 dated May 26, 2009 and a copy of the Letter of Warning dated December 5, 2008 "that management would not provide to [EEO Counselor], but offered to remove."
In response, the Agency requested that the Commission affirm its dismissal of the instant complaint for failure to state a claim. The Agency also argued that the instant complaint should be dismissed pursuant to 29 C.F.R. � 1614.107(a)(2), on the grounds of untimely EEO Counselor contact. Specifically, the Agency stated that Complainant was denied a change of schedule on October 21, 2008 and was issued a Letter of Warning on or around December 5, 2008, but that he did not initiate EEO Counselor contact until March 4, 2009, which it found was well beyond the forty-five (45) day limitation period. The Agency further argued that EEO posters outlining the requisite 45-day limitation period were on display in Complainant's workplace during the relevant period.
Further, the Agency argued that Complainant's complaint should be dismissed pursuant to 29 C.F.R. � 1614.107(a)(7), for failure to cooperate. Specifically, the Agency argued that Complainant's refusal to provide a copy of the December 5, 2008 Letter of Warning when specifically asked for by the EEO Counselor constitutes contumacious conduct.
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 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 that the record reveals that the alleged discriminatory events occurred on October 21, 2008 and on or around December 5, 2008, but that Complainant did not initiate EEO Counselor contact until March 4, 2009, which was well beyond the forty-five (45) day limitation period.
Accordingly, the Agency's dismissal of the instant complaint 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
November 10, 2010
__________________
Date
1 Because the Commission determines that the record supports a finding that Complainant's initial EEO contact was not timely with regard to both claims, we will not address the issue of dismissal for failure to state a claim, or for failure to cooperate.
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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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