0120152240
01-14-2016
Wilfredo M.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Pacific Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Wilfredo M.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 0120152240
Agency No. 4F926008515
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated June 22, 2015, 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 Postal Support Employee (PSE) Clerk (PS-06) at the Ida Jean Haxton Station in Huntington Beach, California.
On June 5, 2015, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (African-American) and color (Black) when on December 18, 2014, he was put on a "mandatory break" or Emergency Placement in an Off-Duty Status without pay until December 22, 2014.
Complainant missed approximately five days of work when he was placed on a "mandatory break" pending an investigation that he acted in a threatening manner and harassed another clerk on December 9, 2014. Complainant asked his manager, JW (white, male), and his union steward, JI (race not specified, female) if he would be paid for the days he had to miss if the investigators determined the allegation to be false. He was reminded that as a PSE, Complainant did not receive paid leave and was not guaranteed weekly hours.
However, it was peak holiday season, so typically a PSE could expect to be scheduled, and possibly even earn overtime, so Complainant sought recourse through the Union. He also requested that the Agency provide him with documents showing hours worked by other clerks during his mandatory break and concerning the harassment investigation. Complainant asserts he only became aware that the mandatory break was an alleged discriminatory act on January 27, 2015 when he met with a union representative about continued difficulties obtaining paperwork.
The Agency dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely EEO Counselor contact. The instant appeal followed.
ANALYSIS AND FINDINGS
The record discloses that the alleged discriminatory event occurred on December 18, 2014, but Complainant did not initiate contact with an EEO Counselor until February 23, 2015, which is beyond the forty-five (45) day limitation period.
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 (Feb, 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. (Complainant v. United States Postal Service (Western Area), EEOC Appeal No. 0120120499 (April 19, 2012))
The record contains ample indications that Complainant had or should have had a "reasonable suspicion" of discrimination at the time of the alleged discriminatory act. For instance, after the December 9, 2014 incident, Complainant alleged that JW seemed to insinuate that he was a gang member, commenting, "leave it on the streets." Although Complainant initially requested JI's assistance, by December 31, 2014, he was so concerned about JI's bias against him that he sought assistance from union representatives outside his district. In a January 7, 2015 email to a union representative, Complainant, among other things, alleges that Management refused his request for documentation and says that he will meet with the union president the next day. In the same email, Complainant expresses that he feels he is "being treated unfairly as an employee" and that he has a "really bad feeling" about his supervisors.
Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED.
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
January 14, 2016
__________________
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.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120152240
2
0120152240