0120142451
10-22-2015
Orval T.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Great Lakes Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Orval T.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.
Appeal No. 0120142451
Agency No. 4J-460-0047-14
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated June 25, 2014, 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant applied for a position at the Agency's Main Post Office in Fort Wayne, Indian. He had been terminated from his prior position with the Agency and mentioned it during the interview on July 18, 2012.
Complainant had another EEO matter pending with an Equal Employment Opportunity Commission Administrative Judge (AJ) regarding his prior position with the Agency. On March 11, 2014, Complainant filed a motion to amend his pending EEO complaint to include a claim of discrimination regarding applying for the new position with the Agency in July 2012. On March 25, 2014, the AJ issued a decision denying Complainant's motion to amend. The AJ noted that the amendment involved different individuals and a different facility from the pending matter before the AJ. As such, the Agency denied Complainant's request and ordered the Agency to process the amendment as a new EEO matter. The AJ instructed the Agency that the filing date of the motion to amend the complaint, namely March 11, 2014, would be considered the date of contact for purposes of timeliness under 29 CFR 1614.105(a).
Pursuant to the AJ's decision, Complainant and the Agency began processing of the new EEO compliant. On June 10, 2014, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of disability, age, and reprisal for prior protected EEO activity when: on July 18, 2012, while being interviewed for a position, Complainant mentioned he had been terminated from a position with the Agency two weeks prior to the interview and he received no further consideration for the position.
The Agency dismissed the complaint pursuant to 29 C.F.R. �1614.107(a)(2) for untimely EEO Counselor contact. The Agency noted that the interview occurred in July 2012, however Complainant did not request an amendment until March 11, 2014. Complainant provided no reason for the delay. As such, the Agency dismissed the complaint.
Complainant appealed asserting that the AJ intended the Agency to process the new matter as a separate complaint. Therefore, the Agency's dismissal was not appropriate. The Agency argued that the AJ merely instructed the Agency to use the March 11, 2014, motion to amend as the date of contact for purposes of determining whether the matter was timely raised. Based on the March 11, 2014 date, the Agency found that Complainant's contact was well beyond the 45 day time limit. Therefore, the Agency requested that the Commission affirm its dismissal.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.107(a)(2) states that the Agency shall dismiss a complaint or a portion of a complaint that fails to comply with the applicable time limits contained in �1614.105, �1614.106 and �1614.204(c), unless the Agency extends the time limits in accordance with �1614.604(c).
EEOC Regulation 29 C.F.R. �1614.105(a)(1) provides that an aggrieved person must initiate contact with an EEO Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within 45 days of the effective date of the action. EEOC Regulation 29 C.F.R. �1614.105(a)(2) allows the Agency or the Commission to extend the time limit if Complainant can establish that Complainant was not aware of the time limit, that Complainant did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence Complainant was prevented by circumstances beyond his control from contacting the EEO Counselor within the time limit, or for other reasons considered sufficient by the Agency or Commission.
In the case at hand, Complainant raised his concern regarding the interview from July 18, 2012, to the AJ in his motion to amend dated March 11, 2014. As such, the date of EEO Counselor contact was March 11, 2014, as stated by the AJ in the decision to deny Complainant's request to amend. We note that the AJ ordered the Agency to process the amendment as a new EEO complaint and to use the March 11, 2014 date to determine if the matter was raised in a timely manner. Based on the March 11, 2014 date of contact, we find that Complaint has not raised the July 18, 2012 interview within the 45 day time limit. Complainant did not provide any reason for the delay. As such, we find that the dismissal pursuant to 29 C.F.R. �1614.107(a)(2) was appropriate.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final decision.
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 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
October 22, 2015
__________________
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.
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