0120151771
05-17-2016
Thad P.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Eastern Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Thad P.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.
Appeal No. 0120151771
Agency No. 1C-191-0014-15
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated April 13, 2015, dismissing a formal complaint of unlawful employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
During the period at issue, Complainant worked as a Laborer Custodial at the Agency's Philadelphia, Pennsylvania Processing and Distribution Center.2
The record reflects that on December 14, 2012, Complainant filed an appeal with the Merits Systems Protection Board (MSPB). Therein, Complainant asserted that he had been constructively suspended for more than 14 calendar days during the period from April 19, 2012, through June 6, 2012.
In an Initial Decision dated September 23, 2014, the MSPB Administrative Judge dismissed the appeal for lack of jurisdiction (MSPB Docket No. PH-0752-13-0128-I-2). Complainant file a petition for review before the MSPB, and the petition was denied, on February 25, 2015.
On April 6, 2015, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency subjected him to discrimination on the basis of disability when:
1. from an unspecified date in April 2012 through June 6, 2012, he was not permitted to work; and
2. on an unspecified date in May 2012, he was required to submit medical documentation to his supervisor and that medical information contained confidential medical information.
In its April 13, 2015 final decision, the Agency dismissed claims 1 and 2 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 occurred on February 25, 2015, which the Agency determined was beyond the 45-day limitation period.
The Agency also dismissed claim 1 for stating the same claim that was raised in a prior EEO complaint, pursuant to 29 C.F.R. � 1614.107(a)(1). Specifically, the Agency found that claim 1 raises the same matter as raised in Agency Case No. 1C-191-0012-12 in which Complainant complained about not being permitted to work from April 2012 to June 2012.
Alternatively, the Agency further dismissed claim 2 pursuant to 29 C.F.R. � 1614.107(a)(1), for failure to state a claim, finding that Complainant was not aggrieved. Specifically, the Agency found that unless the conduct is severe, a single incident or group of isolated incidents will not be considered discriminatory harassment.
The instant complaint followed.
On appeal, Complainant, through his attorney, stated that that the Agency erred dismissing the instant complaint. Specifically, Complainant stated that on December 14, 2012, he filed an appeal to the MSPB alleging that he was discriminated against on the basis of disability when the Agency denied him the opportunity "to continue working, even though he was ready, willing and able to work and work was available." By initial decision issued on September 23, 2014, the MSPB dismissed Complainant's appeal for lack of jurisdiction. Following the MSPB's decision, Complainant's attorney initiated contact with the Agency on December 17, 2014. Finally, Complainant requested that the Agency resume processing of the instant complaint.
ANALYSIS AND FINDINGS
Claim 1
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 Commission has held that where an individual files an appeal with the MSPB which is dismissed for lack of jurisdiction, the matter will not be viewed as a "mixed case." Rather it will be treated as a "non-mixed" matter and processed accordingly. See Schmitt v. Department of Transportation, EEOC Appeal No. 01902126 (July 9, 1990) (sets forth the policy of the Commission assuming jurisdiction over cases dismissed by the MSPB for lack of jurisdiction); Phillips v. Department of Army, EEOC Request No. 05900883 (October 12, 1990); 29 C.F.R. � 1614.302(b). Where the MSPB dismisses for lack of jurisdiction, the Agency must resume processing the matter from the point processing ceased under 29 C.F.R. Part 1614 (the EEO informal and formal complaints process). 29 C.F.R. � 1614.302(c)(2)(ii). Moreover, the date on his a person files his or her appeal with the MSPB shall be deemed the date of the initial EEO Counselor contact. 29 C.F.R. � 1614.302(b).
The Agency in this case determined that the initial EEO Counselor contact date was February 25, 2015. However, regarding claim 1, the record indicates that Complainant claimed that he was not permitted to work from a period of April through June 2012. Complainant appealed this matter to the MSPB, not on February 25, 2015, but rather on December 14, 2012, as noted above. Nevertheless we deem that Complainant's initial EEO Counselor contact was December 14, 2012, and was still beyond the 45-day time limit for timely initiating EEO Counselor contact regarding the matters identified in claim 1. Complainant has note present adequate justification pursuant to 29 C.F.R. �1614.105(a)(2), for extending the limitation period beyond forty-five days.
Claim 2
In claim 2, Complainant claimed that, in May 2012, he was required to submit medical information to a supervisor, and such requested information was confidential in nature. However, a fair reading of the record reveals that this matter was first raised in the above referenced December 14, 2012 appeal to the MSPB. We note that in his final decision, the MSPB Administrative Judge expressly references that in May 2012, an Agency official sent Complainant a certified letter requested relevant medical information regarding for consideration of a reasonable accommodation committee, but that Complainant did not respond. Again, Complainant provides no persuasive arguments or evidence warranting an extension of the time limit for initiating EEO Counselor contact, regarding this claim.
CONCLUSION
The Agency's final decision dismissing both claims in the subject formal complaint on the grounds of untimely EEO Counselor contact is AFFIRMED.
Because we affirm the dismissal for the reason stated herein, we find it unnecessary to address alternative dismissal grounds.
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's signature
Carlton M. Hadden, Director
Office of Federal Operations
May 17, 2016
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
2 The record reflects that by letter dated September 5, 2012, Complainant notified the Agency that because he was awarded disability retirement, he would not return to work. Complainant's last day in a pay status with the Agency was October 8, 2012.
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