0120112471
02-29-2012
Mark Swaggerty, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Northeast Area), Agency.
Mark Swaggerty,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Northeast Area),
Agency.
Appeal No. 0120112471
Agency No. 4B-060-0043-11
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated March 10, 2011, 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.
BACKGROUND
According to the Agency’s decision, at the time of events giving rise
to this complaint, Complainant worked as a Laborer Custodial at the
Agency’s Processing & Distribution Center in Hartford, Connecticut.
On February 26, 2011, Complainant filed a formal complaint alleging
that the Agency subjected him to discrimination on the bases of race
(African American & Native American), sex (male), color (Black), and in
reprisal for prior protected EEO activity when:
1. In 1997, ABM Security received a secret file from the Postal Service on
him and, when he went to the Post Office to be trained for ABM Security,
ABM Security told him never to set foot on postal property or he would
be arrested; and
2. On unspecified dates, he was not re-hired by the Post Office.
The Agency dismissed claim #1 for untimely EEO Counselor contact,
concluding that 13 years had passed between 1997 and 2010 when he
initiated contact. The Agency also determined that Complainant was not
aggrieved by any Agency action. The Agency dismissed claim #2 for not
having been raised with the EEO Counselor and not being like or related
to what was raised in claim #1. From that decision, this appeal follows.
On appeal, Complainant argues that when he resigned in 1997, he was told
he would be eligible to be rehired but that the Agency took some sort
of action involving ABM Security that prevented him from being rehired,
resulting in slander to his name and a violation of his integrity.
ANALYSIS AND FINDINGS
Claim # 1
EEOC Regulation 29 C.F.R. §1614.107(a)(2) states that the agency shall
dismiss a complaint or a portion of a complaint that fails to comply with
the applicable time limits contained in § 1614.105, § 1614.106 and
§ 1614.204(c), unless the agency extends the time limits in accordance
with § 1614.604(c).
EEOC Regulation 29 C.F.R. § 1614.105(a)(1) provides that an aggrieved
person must initiate contact with an EEO Counselor within 45 days
of the date of the matter alleged to be discriminatory or, in the
case of a personnel action, within 45 days of the effective date of
the action. EEOC Regulation 29 C.F.R. § 1614.105(a)(2) allows the
agency or the Commission to extend the time limit if the complainant
can establish that complainant was not aware of the time limit, that
complainant did not know and reasonably should not have known that the
discriminatory matter or personnel action occurred, that despite due
diligence complainant was prevented by circumstances beyond his control
from contacting the EEO Counselor within the time limit, or for other
reasons considered sufficient by the agency or Commission.
It is apparent from the face of the complaint that Complainant was aware
of the allegedly discriminatory acts in 1997. He did not initiate contact
with an EEO counselor about the matter until 13 years later in 2010.
This is obviously far beyond the 45-day period in which Complainant was
required to act. Claim #1 was appropriately dismissed as untimely.
Claim # 2
EEOC Regulation 29 C.F.R. § 1614.107(a)(2) provides that an agency shall
dismiss a claim that raises a matter that has not been brought to the
attention of an EEO Counselor, and is not like or related to a matter
for which a complainant has undergone EEO counseling. In deciding if a
claim is “like or related” to the claim addressed with the counselor,
a determination must be made as to whether the later incident adds to or
clarifies the original claim, and/or could have reasonably been expected
to grow out of the investigation of the original claim. Equal Employment
Opportunity Management Directive 110 (1999), at Ch. 5, § III.B.2 (citing
Scher v. U.S. Postal Serv., EEOC Request No. 05940702 (May 30, 1995);
Calhoun v. U.S. Postal Serv., EEOC Request No. 05891068 (Mar. 8, 1990)).
Here, the counselor’s report states that Complainant asserted that “he
was allowed to resign from his casual position without consequence.”
The complaint alleges that when Complainant resigned he was told that
he could be rehired by the Agency in a different position and that
he has unsuccessfully reapplied to be rehired on seven occasions.
The allegation that the Agency refused to rehire Complainant when he
reapplied is related to the matter raised with the counselor in that
an investigation of the circumstances of Complainant’s resignation
likely would have revealed that he had applied to be rehired. There is
also no evidence in the record to support the conclusion that Claim #2
is untimely. Accordingly, this claim should not have been dismissed
pursuant to 29 C.F.R. § 1614.107(a)(2). The Agency decision dismissing
Claim #2 is reversed.
CONCLUSION
For the foregoing reasons, the Agency’s decision dismissing the
complaint is affirmed with respect to Claim #1 and reversed and remanded
with respect to Claim #2. The Agency shall comply with the Order below.
ORDER (E0610)
The Agency is ordered to process the remanded claim in accordance with
29 C.F.R. § 1614.108. The Agency shall acknowledge to the Complainant
that it has received the remanded claim 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 (K0610)
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 77960, Washington, DC
20013. 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 (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 (T0610)
This decision affirms the Agency’s final decision/action in part, but it
also requires the Agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion of
your complaint which the Commission has affirmed and that portion of the
complaint which has been remanded for continued administrative processing.
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 your appeal with the Commission, until such time as the Agency
issues its final decision on your complaint. 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
February 29, 2012
__________________
Date
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0120112471
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120112471