0120171181
06-08-2017
Demarcus P.,1Complainant, 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
Demarcus P.,1Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Southern Area),
Agency.
Appeal No. 0120171181
Agency No. 4G-780-0210-16
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated January 5, 2017, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Bulk Mail Tech at the Agency's Dr. Hector P. Garcia Post Office facility in Corpus Christi, Texas.
Complainant contacted the EEO Counselor on August 23, 2016, regarding his claim of discrimination. When the matter was not resolved informally, on November 17, 2016, the Agency issued a Notice of Right to File a Formal Complaint (Notice). The Notice was mailed with signature confirmation. The Agency provided a copy of the signature form with Complainant's signature dated November 19, 2016. Complainant signed the Notice on November 21, 2016, and noted on the formal complaint that he received the Notice on November 21, 2016.
On December 6, 2016, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the basis of reprisal for prior protected EEO activity under an EEO statute that was unspecified in the record when:
1. During March 2016, the Supervisor made threats to revert a BMEU assignment, required Complainant to read complete job aids, required him to wear a badge which was not a part of your uniform and conducted an investigative interview.
2. On April 2, 2016, Complainant was issued a Letter of Warning.
3. On April 4, 2016, Complainant was required to provide documentation for absences.
4. On April 14, 2016, Complainant was given an investigative interview and subsequently on April 26, 2016, he was issued a 7 Day Suspension.
5. On April 29, 2016, Complainant's Annual Leave request was denied.
6. On May 3, 2016, Complainant was placed on the Deems Desirable list.
7. On May 6, 2016, his 8 hours of Annual Leave was changed to 8 hours of Leave without Pay (LWOP).
8. On June 10, 2016, management failed to comply with a grievance settlement.
9. On June 17, 2016 and July 6, 2016, Complainant's work schedule was changed.
10. On June 30, 2016, Complainant received a Letter of Demand for $471.38.
11. On July 22, 2016, Complainant's request for Administrative Leave for July 18, 2016 was denied.
12. On July 23, 2016, Complainant received another Letter of Demand for $33.45.
13. On August 9, 2016 and August 11, 2016, Complainant received a Letter of Involuntary Offset.
The Agency issued a final decision dismissing the complaint pursuant to 29 CFR � 1614.107(a)(2). The Agency noted that Complainant received the Notice on November 19, 2016. The Agency determined that Complainant did not file his formal complaint until December 6, 2016, beyond the 15 calendar day time limit. The Agency also dismissed portions of the claims pursuant to 29 CFR � 1614.107(a)(2) for untimely EEO Counselor contact and 29 CFR � 1614.107(a)(1) for failure to state claim. However, the Agency dismissed the complaint as a whole pursuant to 29 CFR � 1614.107(a)(2) for untimely formal complaint.
Complainant appealed asserting that the Agency's dismissal was not appropriate. However, Complainant failed to challenge the Agency's dismissal of the complaint pursuant to 29 CFR � 1614.107(a)(2) for untimely filing of the formal complaint. Complainant did not contest the Agency's statement and evidence that Complainant received the Notice on November 19, 2016. The Agency asked that the Commission affirm its dismissal.
ANALYSIS AND FINDINGS
EEOC Regulation 29 CFR � 1614.107(a)(2) provides that, the agency shall dismiss a complaint that fails to comply with applicable time limits. The record discloses that Complainant received the notice of right to file a formal complaint on November 19, 2016. Complainant subsequently dated the Notice with a different date, namely November 21, 2016, without explanation. Although the Notice indicated that Complainant had to file a formal complaint within fifteen (15) calendar days of its receipt, Complainant failed to do so. The record discloses that Complainant received the notice of right to file a formal complaint on December 6, 2016. On appeal, Complainant provided no justification to warrant an extension of the time limit for filing the complaint.
CONCLUSION
Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED.2
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 8, 2017
__________________
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 Because we affirm the Agency's final decision for the reason set forth herein, we need not address the Agency's alternate grounds for dismissal.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120171181
4
0120171181