0120103732
02-08-2011
Bradley G. Gober, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Southwest Area), Agency.
Bradley G. Gober,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Southwest Area),
Agency.
Appeal No. 0120103732
Hearing No. 450-2010-00155X
Agency No. 1G-754-0065-09
DECISION
On September 20, 2010, Complainant filed an appeal from the Agency's August 26, 2010 Notice of Final Action concerning an equal employment opportunity (EEO) complaint alleging 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. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. � 1614.405(a).
BACKGROUND
During the period at issue, Complainant worked as a Bulk Mail Technician at the Agency's North Texas Processing and Distribution Center. On July 29, 2009, the Agency issued a Notice of Removal notifying Complainant that he would be removed from the Postal Service on September 3, 2009, for unacceptable conduct/improper usage of an agency computer, including usage that damaged that computer.
On September 24, 2009, Complainant initiated contact with an EEO Counselor, claiming that he was the victim of unlawful employment discrimination on the bases of sex (male), color (white), age (57), and in reprisal for prior protected EEO activity when he was issued a Letter of Removal. Informal efforts to resolve the matter were unsuccessful.
On October 15, 2009, Complainant filed the instant formal complaint, on the matter for which he underwent EEO counseling, discussed above.
The Agency conducted an investigation and, at its conclusion, provided Complainant with a copy of the report of investigation and notice of his right to request a hearing before an EEOC Administrative Judge (AJ). Complainant requested a hearing.
On August 11, 2010, the AJ denied the hearing request and dismissed the formal complaint on the grounds that Complainant's EEO Counselor contact was untimely. The AJ stated that the Agency's July 29, 2009 Notice of Removal was subsequently reduced to a thirty (30) day off-the-clock suspension beginning August 22, 2009 and ending September 24, 2009, following a union grievance resolution. The Agency adopted the AJ's decision in its August 26, 2010 final action.
On appeal, Complainant claims that his EEO Counselor contact is timely because the July 29, 2009, Notice of Removal stated that his removal from the Postal Service was effective on September 3, 2009, and that he contacted an EEO Counselor on that matter on September 24, 2009, within the 45-day time limit set by the regulations.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) provides that an aggrieved person who believes that he has been discriminated against on the basis of race, color, religion, sex, national origin, age, or handicap must 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 effective date of the action prior to the filing of a complaint.
The record indicates that the Agency issued the Notice of Removal dated July 29, 2009, notifying Complainant that he would be removed from the Agency on September 3, 2009, and Complainant contacted an EEO Counselor on that matter approximately three weeks later on September 24, 2009. The Commission finds Complainant's Counselor contact was therefore within the 45-day time limit of the effective date of the personnel action, September 3, 2009. Accordingly, the Commission finds that both the AJ and the Agency erred in finding Complainant's EEO Counselor contact was untimely.
The Commissions REVERSES the final order of the Agency and REMANDS the matter to the Agency for further processing in accordance with the ORDER below.
ORDER
The Agency shall submit to the Hearings Unit of the Dallas District Office a request for a hearing within fifteen (15) calendar days of the date this decision becomes final. The agency is directed to submit a copy of the complaint file to the EEOC Hearings Unit within fifteen (15) calendar days of the date this decision becomes final. The Agency shall provide written notification to the Compliance Officer at the address set forth below that the request and complaint file have been transmitted to the Hearings Unit.
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 (R0610)
This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. 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 filed your appeal with the Commission. 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. 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 8, 2011
__________________
Date
2
0120103732
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120103732