0120103554
02-01-2011
Joseph W. Page, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Great Lakes Area), Agency.
Joseph W. Page,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Great Lakes Area),
Agency.
Appeal No. 0120103554
Agency No. 4J-600-0084-10
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
final decision (FAD) dated July 26, 2010, dismissing his complaint of
unlawful employment discrimination in violation of the Age Discrimination
in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
Upon review, the Commission finds that Complainant's complaint was
properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely
EEO Counselor contact.
BACKGROUND
At the time giving rise to this complaint, Complainant worked as a
Customer Service Supervisor for the United States Postal Service in Des
Plaines, Illinois. In his complaint, Complainant alleged that the Agency
subjected to him discrimination on the basis of age (56) when another
employee with the same core requirement as Complainant was rated higher
than him.
Complainant received his performance ratings on November 2, 2009.
The coworker whom Complainant alleges received a higher performance
rating than him received her performance ratings on October 30, 2009.
Complainant appealed his performance ratings internally, and on
March 18, 2010, the Agency denied his appeal. Complainant initiated
contact with an EEO Counselor on April 8, 2010. The Agency dismissed
Complainant's complaint as untimely. In its FAD, the Agency found the
alleged discriminatory act occurred on November 2, 2009; therefore the
April 8, 2010, contact with an EEO Counselor exceeded the 45 day contact
requirement.
CONTENTIONS ON APPEAL
On appeal, Complainant alleges he was not aware of the alleged
discriminatory activity until March 18, 2010, when the Agency denied
his internal agency appeal. Complainant alleges the evidence of the
discrimination was not known to him until March 18, 2010. In opposition
to the appeal, the Agency argues that the FAD should be affirmed.
ANALYSIS AND FINDINGS
An aggrieved person must initiate contact with a Counselor within 45 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.
29 C.F.R. � 1614.105(a)(1). Complainant's argument is that his statutory
period did not begin until the Agency denied his final internal agency
appeal. According to the court in Tucker, "an internal appeal simply is
insufficient to toll the 45-day time limitation provided in 29 C.F.R. �
1614.105." 1998 WL 559760, 7 (D.Kan., 1998) citing Delaware State College
v. Ricks, 449 U.S. 250, 261, (1980) ("[T]he pendency of a grievance,
or some other method of collateral review of an employment decision,
does not toll the running of the limitations period" on a Title VII
or section 1981 claim); Soignier v. American Board of Plastic Surgery,
92 F.3d 547 (7th Cir.1996).
The record discloses that the alleged discriminatory event occurred
on November 2, 2009, but Complainant did not initiate contact with an
EEO Counselor until April 8, 2010, which is beyond the forty-five (45)
day limitation period. There are no persuasive arguments or evidence
warranting an extension of the time limit for initiating EEO Counselor
contact.
Accordingly, the FAD is AFFIRMED.
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 (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 (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 1, 2011
__________________
Date
2
0120103554
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120103554