0120151683
09-10-2015
Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Pacific Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 0120151683
Agency No. 4F913004415
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated April 6, 2015, 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., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Clerk at the Agency's Main Office facility in Van Nuys, California.
On March 2, 2015, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (Asian) and disability when, on November 15, 2013, he was issued a notice of removal1 and subsequently, on April 25, 2014, he was placed on non-work, non-pay status.
The Agency dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely EEO counselor contact. 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 a personnel action, within forty-five (45) days of the effective date of the action. The record in this case discloses that the most recent alleged discriminatory event occurred on April 25, 2014, but Complainant did not initiate contact with an EEO Counselor until January 18, 2015, about eight months later and well beyond the forty-five (45) day limitation period.
On appeal, Complainant has presented no persuasive arguments or evidence warranting an extension of the time limit for initiating EEO counselor contact. While Complainant, in his statement on appeal, seems to argue he did not reasonably suspect discrimination until December 8, 2014, making his January 18, 2015 initial EEO contact timely made. However, Complainant fails to explain the basis for this claim, including what happened on December 8, 2014 that made him believe, for the first time, he had been the victim of discrimination. Complainant concedes he knew he was removed from work and placed in a non-pay status in April 2014, but states he did not know the reason he was arrested by the Postal Inspectors. We find however, under the facts of this case, that being removed from work in April 2014 was sufficient to trigger his responsibility to seek timely EEO counseling.
Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED.2
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)
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, 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 (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 Complainants 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
September 10, 2015
__________________
Date
1 Complainant remained at work following receipt of the notice of removal pending the outcome of his grievance filed on the removal. Prior any final grievance decision, it appears that he was arrested by the Postal Inspectors and placed in a non-work, non-pay status on April 25, 2014.
2 As it is not clear when or if an actual removal has been effectuated, Complainant may contact an EEO counselor within 45 days of the date his removal is effective if he has not already done so. This decision does not concern the actual removal, but rather, the notice of removal which was not yet in effect, as well as being arrested and placed off work in April 2015.
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