0120161398
06-07-2016
Tyree R.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Tyree R.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Southern Area),
Agency.
Appeal No. 0120161398
Agency No. 4G-335-0014-16
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated February 18, 2016, 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 worked as a Maintenance Mechanic at the Agency's Orlando, Florida Processing and Distribution Center.
On October 26, 2015, Complainant initiated EEO Counselor contact. Informal efforts to resolve his concerns were unsuccessful.
On January 30, 2016, Complainant filed the instant formal complaint. Therein, Complainant claimed that the Agency subjected him to discrimination on the bases of sex, age, and in reprisal for prior protected activity when:
on June 19, 2015, after reviewing EEO case file for Agency No. 1G-336-0058-15, he discovered he had been placed last on the seniority list during the eReassign process.2
Complainant alleged that while reviewing the Record of Investigation for Agency Case No. 1G-336-0058-15, he discovered that a comparator employee had been placed on the seniority list ahead of him during the reassignment process. As a result, the comparator employee received a Level 9 position while he received a Level 7 position.
In its February 18, 2016 final decision, the Agency dismissed the formal complaint on the grounds of untimely EEO Counselor contact, pursuant to 29 C.F.R. � 1614.107(a)(2). The Agency determined that Complainant's initial EEO Counselor contact was on October 26, 2015, which it found to be beyond the 45-day limitation period. Specifically, the Agency noted that Complainant alleged that while reviewing the Record of Investigation for Agency Case No. 1G-336-0058-15, he discovered that a comparator employee had been placed on the seniority list ahead of him during the reassignment process. As a result, the comparator employee received a Level 9 position while he received a Level 7 position. The Agency found, however, the record reflects that Complainant transferred into the Level 7 position on July 25, 2015. The Agency determined that Complainant's October 26, 2015 EEO contact was approximately 93 days after the date he received the lower level position, which was beyond the 45-day time limit.
The Agency stated assuming arguendo Complainant did only "become aware" upon review of the Report of Investigation for Agency Case No. 1G-336-0058-15, the U.S. Postal Service Track and Confirm indicates this document was delivered to him on July 31, 2015, 87 days before he contacted the EEO office on October 26, 2015. Moreover, the Agency stated that Complainant was aware of the 45-day limitation because he had engaged in prior protected activity.
Further, the Agency dismissed the formal complaint on the alternative grounds of 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 instant formal complaint raises the same matter in Agency Case No. 1G-336-0058-15.
Complainant, on appeal, argues that his October 26, 2015 EEO contact was timely. Complainant states in January 2015, his request for eReassign transfer was denied. After meeting with [Plant Manager], he stated, my transfer was denied because my supervisor [supervisor] never sent the email releasing me. After talking with other managers and supervisors I found out I was lied to over and over again. I was being withheld for my supervisors benefit. I filed [an] EEO because of these actions. In July 2015, I was finally release for transfer. In the meantime, others [were] [allowed] to transfer ahead of me. I requested questions to be answered through email with [Postal attorney]. He never answered my questions, yet he sent me notification he received them in a timely manner.
Further, Complainant states "during my investigation I found out I was wronged again by [Human Resources]. [Comparator employee] was placed ahead of me in the transfer. This is wrong, [Comparator employee] applied a year later than me to be transferred....I filed a retaliatory EEO, and was told by the Postal attorney, I was untimely, I should have known this. I filed the EEO when I discovered this."
The instant appeal followed.
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 personnel action, within forty-five (45) days of the effective date of the action.
The alleged discriminatory event occurred on June 19, 2015. However, Complainant did not initiate contact with an EEO Counselor until October 26, 2015, well beyond the 45-day limitation period. Complainant had or should have had a reasonable suspicion of discrimination regarding his claim more than 45 days prior to his initial contact with an EEO Counselor. In summary, we determine that, on appeal, Complainant did not present persuasive arguments or evidence warranting an extension of the time limit for initiating EEO Counselor contact. See 29 C.F.R. � 1614.604(c). Therefore, the Agency properly dismissed the formal complaint on the grounds of untimely EEO Counselor contact.
Additionally, the Commission has consistently held that use of internal agency procedures, such as union grievances, and other remedial processes does not toll the time limit for contacting an EEO Counselor. See Kramer v. United States Postal Service, EEOC Appeal No. 01954021 (October 5, 1995); Williams v. United States Postal Service, EEOC Request No. 05910291 (April 25, 1991); Ellis v. United States Postal Service, EEOC Request No. 01992093 (November 29, 2000).
The Agency's final decision dismissing Complainant's formal complaint for the reason stated herein is AFFIRMED.
Because we affirm the dismissal for the reason stated herein, we will not address alternative dismissal grounds.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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 Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
June 7, 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 in the instant formal complaint, Complainant identified the date of alleged discriminatory date as June 19, 2015. The record further reflects that in its final decision and the EEO Counselor's Report, the Agency inadvertently identified the initial EEO contact date of October 26, 2015, as the date of the alleged discriminatory event. However, there is nothing in the record reflecting that Complainant asserted that he developed a reasonable suspicion of discrimination on any date other than June 19, 2015, as referenced above. We therefore will consider June 19, 2015, as the date for computing the forty-five day limitation period.
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