0120112966
10-20-2011
Kenneth L. Rowlands, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Eastern Area), Agency.
Kenneth L. Rowlands,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Eastern Area),
Agency.
Appeal No. 0120112966
Agency No. 4C-190-0034-11
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated March 24, 2011, dismissing a formal 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.
BACKGROUND
During the period at issue, Complainant worked as a Letter Carrier at the Agency's Marcus Hook Post office facility in Marcus Hook, Pennsylvania.
On February 1, 2011, Complainant contacted the EEO office, alleging that the Agency subjected him to discrimination on the basis of age (53). Informal efforts to resolve Complainant's concerns were unsuccessful. On March 7, 2011, Complainant filed a formal complaint.
A fair reading of the record reflect that Complainant claimed that he was discriminated against when he learned that another driver involved in an accident was not issued discipline, although Complainant had been issued a Notice of Removal which was reduced to a 30-day "time served" suspension on December 3, 2010, which became effective on December 11, 2010.
In its final decision, the Agency states that the alleged discriminatory event occurred either on December 3, 2010, or at the latest on December 11, 2010, but that Complainant did not initiate contact with an EEO Counselor until February 1, 2011, which it found to be beyond the forty-five day limitation period for making timely EEO contact.
CONTENTIONS ON APPEAL
On appeal, Complainant states that he did not develop a reasonable suspicion of discrimination regarding the December 3, 2010 action, until he discovered on January 17, 2011, that another employee who had purportedly committed the same offense as he was not disciplined like he was.1 The Agency raised no new contentions on appeal, and requests that the Commission affirm its final decision.
ANALYSIS AND FINDINGS
The Commission has adopted a "reasonable suspicion" standard (as opposed to a "supportive facts" standard) to determine when the forty-five (45) day limitation period is triggered. See Howard v. Dep't of the Navy, EEOC Request No. 05970852 (February 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.
Where as here, there is an issue of timeless, "[a]n agency always bears the burden of obtaining sufficient information to support a reasoned determination as to timeless." See Guy v. Department of Energy, EEOC Request No. 05930703 (January 4, 1994) (quoting Williams v. Department of Defense, EEOC Request No. 05920506 (August 25, 1992). In addition, in Ericson vs. Department of the Army, EEOC request No. 05920623 (January 14, 1993), the Commission stated that "the agency has the burden of providing evidence and/or proof to support its final decision." See also Gens v. Department of Defense, EEOC request No. 05910837 (January 31, 1992).
In the instant case, the Agency has not explained why Complainant should have had a reasonable suspicion of discrimination before he found out that a younger employee was not disciplined as he had been disciplined. As such, the Commission finds that Complainant was not aware that he may have been treated differently than others until January 17, 2011, thereby rendering timely his initial EEO contact of February 1, 2011.
CONCLUSION
The Agency's final decision dismissing Complainant's complaint on the grounds of untimely EEO contact is REVERSED. The formal complaint is REMANDED to the Agency for further processing in accordance with the ORDER below.
ORDER (E0610)
The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. � 1614.108. The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision becomes final. The Agency shall issue to Complainant a copy of the investigative file and also shall notify Complainant of the appropriate rights within one hundred fifty (150) calendar days of the date this decision becomes final, unless the matter is otherwise resolved prior to that time. If the Complainant requests a final decision without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of Complainant's request.
A copy of the Agency's letter of acknowledgment to Complainant and a copy of the notice that transmits the investigative file and notice of rights must be sent to the Compliance Officer as referenced below.
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
10/20/2011
__________________
Date
1 The Commission notes that in his formal complaint, Complainant identifies the alleged discriminatory event as having occurred on "Dec. 16, 2010." However, Complainant further elaborates in the formal complaint form that the date of the accident of the comparator-employee was on December 16, 2010, which is not inconsistent with his assertion that he only discovered that the comparator employee was not similarly disciplined until January 17, 2011.
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0120112966
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013