0120132004
09-17-2013
Tracy J. Ealy, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southwest Area), Agency.
Tracy J. Ealy,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southwest Area),
Agency.
Appeal No. 0120132004
Agency No. 4G-780-0011-13
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated March 8, 2013, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Window Clerk at the Agency's Airport Mail Facility (Facility) in San Antonio, Texas.
On October 22, 2012, Complainant contacted the EEO Counselor. When the matter could not be resolved informally, Complainant was issued a notice of right to file a formal complaint. On February 1, 2013, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the basis of race (White) when:
On September 26, 2012, Complainant was provided with a memorandum by the Facility Manager that his position as lead sales/services associate was being abolished and reposted with different hours. He was informed that his current job had a begin tour time of 1650. Complainant was informed that his tour began at 1450 by the Former Manager and he had been beginning his tour at 1450 for approximately three years without any knowledge of the 1650 reporting time.
The Agency dismissed the complaint pursuant to 29 C.F.R. �1614.107(a)(2) for failure to timely contact of with the EEO Counselor. The Agency noted that Complainant had been told 3 years ago that his start time was 1450. Complainant claimed it was not until September 2012 that he was aware that he was working outside of his schedule. The Agency found that Complainant's assertion was not credible for he had held the bid position and was beginning his tour at 1600 since 2008. Subsequently, the Former Manager told him in December 2009 that he needed to report at 1450. As such, the Agency found that Complainant was aware of the change in December 2009, but failed to pursue this claim. As such, the Agency determined that Complainant's contact nearly three years after the change in his schedule was well beyond the 45 day time limit. Accordingly, the Agency dismissed the complaint.
Complainant appealed asserting he was not aware that anything was wrong with his schedule until his position was reposted. That is when he learned that he should have been paid for working outside of his schedule.
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 the 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.
Complainant indicated that his position was posted in 2006 with a start time of 1600 but he was told to start at 1450 by the Former Manager who has since retired. Complainant claimed he did not become aware of the proper start time until he was informed in September 2012, that his position would be reposted with the proper start time. As such, Complainant believed that the Agency owed him out-of-schedule premium pay.
Upon review of the record, the Commission is not persuaded by Complainant's argument that he was not aware of the change in schedule until the position was reposted in September 2012. Complainant stated in his formal EEO complaint that in 2006, his position started at 1600. Subsequently, he was verbally told in December 2009, that he was to report to work at 1450 by the Former Manager. Therefore, we find Complainant knew about the change in start time in December 2009, but failed to contact the EEO Counselor then. He comes now because he learned of additional perceived losses, but he was clearly aware of the schedule issue in December 2009. Therefore, we find his EEO contact in October 2012, was well outside of the 45 day time limit and the Agency's dismissal 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 (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
September 17, 2013
__________________
Date
2
0120132004
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120132004