0120110963
09-26-2013
Robert W. Carter, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Northeast Area), Agency.
Robert W. Carter,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Northeast Area),
Agency.
Appeal No. 0120110963
Agency No. 1B-061-0020-10
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated October 29, 2010, 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. 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 of events giving rise to this complaint, Complainant worked as a Mail Processing Clerk at the Agency's Processing & Distribution Center (P&DC) facility in Hartford, Connecticut. On October 8, 2010, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race/national origin (Hispanic), sex (male), disability (physical), and age (54) when on June 14, 2010, Complainant was notified that, as a result of an Arbitration Decision dated June 7, 2010, his Removal dated March 7, 2009, was upheld and he was terminated.
The record reveals that Complainant received a Notice of Removal on March 7, 2009. Complainant did not, however, request EEO Counseling until July 21, 2010, which is approximately 16 months from the date of the alleged incident. Complainant waited to contact an EEO Counselor until after a final decision was issued in the arbitration process regarding this matter. Based on this information, the Agency dismissed Complainant's complaint for untimely EEO Counselor contact. The Agency found that Complainant failed to contact the EEO Counselor within the 45-day time limitation period. The Agency noted that Complainant was aware of the time limits for contacting an EEO Counselor, as there were posters located in the building, and he was not otherwise prevented by circumstances beyond his control from requesting counseling within the 45-day timeframe.
The Agency also pointed out that the Commission has long held that an internal appeal of an Agency action does not toll the running of the limitations period for contacting an EEO Counselor. Therefore, the Agency dismissed Complainant's complaint for untimely EEO Counselor contact.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that his complaint is timely as he contacted an EEO Counselor within 45 days of learning of the results of his arbitration hearing. Complainant maintains that he is simply seeking a fair and just resolution to this matter. He argues that after he was given notice of his termination, he was walked out of the facility and was not allowed to return. He argues that he did not have the opportunity to go back and read the EEO posters. He asserts that he has worked for the Agency for over 20 years, and that within 7 months of working in this new facility he was terminated for leave abuse. Complainant argues that throughout this process management has lied and the truth would show that he had both a sick leave and annual leave balance. Complainant contends that he was subjected to discrimination by his supervisor but he has been unable to tell his side of the story throughout this process. Complainant requests that "for the sake of fairness" his complaint be allowed to go forward.
In response, the Agency contends that Complainant has not provided anything that would warrant disturbing its dismissal. The Agency requests that its finding be affirmed as the decision to dismiss the complaint is consistent with applicable case law and should be sustained.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of personnel action, within forty-five (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 (45) day limitation period is triggered. See Howard v. Department 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.
The Agency or the Commission shall extend the 45-day time limit 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. 29 C.F.R. � 1614.105(a)(2).
The record discloses that the alleged discriminatory event occurred on March 7, 2009, but Complainant did not initiate contact with an EEO Counselor until July 21, 2010, which is well beyond the forty-five (45) day limitation period. We find the issue described by Complainant, a termination, is a discrete act and each discrete act starts the limitation period; which requires a Complainant to contact an EEO Counselor within 45-days of the incident. In the instant case, Complainant elected to pursue this matter through the grievance process; however, the Commission has long held that using an internal appeal process, like filing a grievance, does not toll the running of the time limitation period for contacting an EEO Counselor. Further, we find that Complainant has presented no persuasive arguments or evidence warranting an extension of the time limit for initiating EEO Counselor contact. Therefore, we find that Complainant has not demonstrated that the Agency's decision should be reversed.
CONCLUSION
Accordingly, the Agency's final decision dismissing Complainant's complaint 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
_9/26/13_________________
Date
2
0120110963
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120110963