01a54961
12-05-2005
Hung Le, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Capital-Metro Area), Agency.
Hung Le v. United States Postal Service
01A54961
December 5, 2005
.
Hung Le,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Capital-Metro Area),
Agency.
Appeal No. 01A54961
Agency No. 1K-222-0007-05
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated June 30, 2005, 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. In his
complaint, complainant alleged that he was subjected to discrimination
on the bases of race (Asian) and national origin (Vietnamese) when:
On December 2, 2004, his supervisors refused his request for a shop
steward;
On December 2, 2004, Postal Inspectors handcuffed him in front of
co-workers, and
On January 25, 2005, he was issued a Notice of Removal, dated Jan. 20,
2005.<0>
The agency dismissed all the claims as untimely pursuant to 29 C.F.R. �
1614.107(a)(2) because complainant failed to contact an EEO Counselor
within the 45-day time limit. According to the agency, he contacted the
Counselor on April 29, 2005, approximately 148 days after the alleged
discriminatory incident, despite being constructively aware of the time
limit from the EEO poster that was visibly displayed. See Final Agency
Decision at 1-2 (citing affidavit of Manager of Distribution Operations
attesting to existence and visibility of EEO poster). The agency further
found that in addition to having been untimely raised, claims 1 and 2
failed to state actionable claims. Specifically, the agency argues that a
denial of a union representative does not render a complainant aggrieved
under EEO law, and that an allegation based on an internal investigative
proceeding is a collateral attack on the investigative process and thus
is not claim that is reviewable by the EEOC. See id. at 3-5.
In response, complainant's attorney submitted a statement on appeal
arguing that the dismissal was unwarranted. As mentioned in the footnote
above, he argues that the EEO Counselor incorrectly framed the issues
and that the agency adopted that formulation leading to the improper
dismissal. Complainant argues that the agency should have adopted the
issues as he had them during the pre-complaint stage. Viewing the
issues in this manner, it is clear that the claims were timely raised.
With regard to claim 1, complainant explains that the discriminatory
incident occurred on April 6, 2005, and as he contacted a Counselor on
April 29, 2005, the contact was timely because it was done within 23 days.
As for claim 2, complainant argues that at the time he sought counseling
on April 29th he was still in Leave Without Pay status. As that non-pay
status began on December 2, 2004 and continued through April 2005,
it was a continuing violation which made the Counselor contact timely.
In response to the appeal, the agency simply states that it did not rely
on the Counselor's Report to determine the claims, but rather it relied
on complainant's own Formal Complaint. The agency explains, �[w]hile
it is the responsibility of the counselor to frame the issues at the
informal stage of the process, the Complainant has the right to change
or alter the issues as he chooses.... [i]t would not be feasible for
the Agency to assume that the issues at the informal stage were correct
instead of the issues presented on the formal [complaint].� Agency's
Response To Appeal.
Legal Analysis
To begin, we note that at any time prior to the conclusion of the
investigation into the case, a complainant may amend the pending complaint
to amend or add like or related claims. See 29 C.F.R. � 106(d); see also
Equal Employment Opportunity Management Directive for 29. C.F.R. Part
1614, Ch. 5, III., B. (Nov. 9, 1999). Moreover, the Acknowledgment Letter
sent to complainant on June 22, 2005 informs complainant of this right.
The fact that complainant never expressed disagreement with how the
claims had been framed leads us to conclude that complainant agreed with
how he had formulated them on his Formal Complaint. Having reviewed
the Complaint, we find that complainant expressed his claim quite
articulately and find no reason to disregard it. Furthermore, we agree
with the agency that the EEO Counselor's role in framing the issue is
a temporary one during the informal counseling stage until complainant
articulates his claim in the Formal Complaint. Therefore, we view that
the three claims stated above are those properly at issue here.
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of
discrimination be brought to the attention of the EEO Counselor within
forty-five days of the date of the matter alleged to be discriminatory or,
in the case of 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 forty-five day limitation period is triggered. See Howard
v. Dep't of the Navy, EEOC Request No. 05970852 (Feb. 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.
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. See 29 C.F.R. � 1614.105(a)(2).
The Commission agrees with the agency that complainant lacked due
diligence in the enforcement of his rights and provides no reason
why we should equitably extend the time limits.. The alleged date
of discrimination in claims 1 and 2 is December 2, 2004. Complainant
admits that he contacted the EEO Counselor on April 29, 2005. This 148
day lapse is clearly a violation of 45 day time limit set forth in 29
C.F.R. � 1614.105(a)(1). With regard to Claim 3, he takes issue with
the Notice of Removal which he received on January 25, 2005. Again,
it is clear that complainant contacted the EEO Counselor 95 days after
the alleged wrongful personnel action. The Commission has consistently
held that complainants must act with due diligence in the pursuit of
their claims and that failure to do so may result in the dismissal of
the claims by the doctrine of laches.
Therefore, as we find the dismissal for untimely counselor contact to
be sufficient, we decline to address the agency's alternative ground
for dismissal. Accordingly, we affirm the final agency decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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), 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 19848,
Washington, D.C. 20036. 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 (S0900)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
December 5, 2005
__________________
Date
0 1In his statement on appeal, complainant
argues this formulation of the issues is incorrect. He maintains that the
EEO Counselor changed the allegation from how complainant had originally
expressed them during the informal counseling sessions. His claims are
properly articulated in the following way:
1. After criminal charges were dismissed on April 6, 2005, Postal Service
management failed to return complainant to duty and expunge the January
20, 2005 Notice of Removal that was issued to him, and
2. Since December 2, 2004, complainant has been prevented from working
at the Postal Service and kept in a Leave Without Pay status.