0120181278
08-02-2018
Abdul M,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Great Lakes Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Abdul M,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.
Appeal No. 0120181278
Agency No. 1J-531-0001-18
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated January 23, 2018, 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.
BACKGROUND
During the period at issue, Complainant worked as a Postal Support Employee (PSE) for the Agency in Chicago, Illinois.
On October 2, 2017, Complainant initiated EEO Counselor contact. Informal efforts to resolve her concerns were not successful.
On January 5, 2018, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination based on race and national origin when:
she learned on September 20, 2015, September 2, 2016, December 3, 2016, January 28, 2017 and August 10, 2017 that the Agency failed to hire her for available Postal Support Employee (PSE) Mail Handler Assistant (MHA), positions with the Agency.
According to the report of the EEO Counselor, Complainant claims that she has been continuously by-passed for PSE and MHA positions since 2014.
In the instant final decision, the Agency dismissed the formal complaint for untimely EEO Counselor contact, in accordance with EEOC Regulation 29 C.F.R. �1614.107(a)(2). The Agency determined that Complainant's contact with an EEO Counselor on October 2, 2017 regarding her concerns was beyond the applicable time limitation
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.107(a)(2) provides for the dismissal of a formal complaint where a complainant did not initiate contact with a 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. The Commission has adopted a "reasonable suspicion" standard as opposed to a "supportive facts" standard to determine when the 45-day time limit 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. McLouglin v. Department of the Treasury, EEOC Request No. 05A01093 (April 24, 2003).
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.
Complainant alleges that since 2014, the Agency failed to hire her for several PSE and MHA positions. Complainant believed that she was consistently overlooked by the Agency to fill various positons in favor of individuals with less seniority than her and who received lower evaluation scores than she did. In its final decision, the Agency found that Complainant failed to contact an EEO Counselor within 45 days of September 20, 2015, September 2, 2016, December 3, 2016, January 28, 2017 and August 10, 2017, when she learned of her non-selection for various positions.
We acknowledge that the EEO Counselor's Report reflects that Complainant asserted that a discriminatory event occurred "most recently on 9/6/2017, [when Complainant] was not selected for a PSE position at Palatine P&DC." On appeal, Complainant contends that she received Agency correspondence dated September 6, 2017 informing her that she did not meet the eligibility or suitability requirements for the positon of PSE Mail Processing Clerk, Palatine, Illinois, NC10124773. Consequently, Complainant contends that her EEO Counselor contact on October 2, 2017 was within 45 days of the Agency's September 6, 2017 correspondence. However, there is no way to determine if the Agency's September 6, 2017 correspondence relates to any particular non-selection referred to by Complainant in the instant matter. Complainant's formal complaint does not specifically indicate the vacancy announcements applied to nor does the record contain copies of any particular PSE or MHA positions at issue in this matter. The record, in essence, contains no documentation reflecting an alleged discriminatory event which occurred in the 45 days preceding the initial EEO contact.
In reaching this conclusion, we note that Complainant has not alleged that she was unaware of the time limitations for timely contacting an EEO Counselor. Moreover, she has not alleged that she was prevented by circumstances beyond her control from seeking EEO counseling in a timely manner.
CONCLUSION
The Agency's final decision dismissing the instant formal complaint on the grounds of untimely EEO Counselor contact is AFFIRMED for the reasons set forth herein.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. 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. Complainant's request 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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
August 2, 2018
__________________
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.
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