0120130329
03-22-2013
Aaron D. Michael, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southeast Area), Agency.
Aaron D. Michael,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southeast Area),
Agency.
Appeal No. 0120130329
Agency No. 4G335014512
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated September 28, 2011, 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Business Solutions Specialist at the Agency's Ventura Beach facility in Orlando, Florida.
On August 26, 2012, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (African-American), color (Not Specified), and disability (back) when:
1. On March 7, 2011, he discovered that his Performance Evaluation System (PES) goal was reduced;
2. On April 5, 2011, his eResource and rebuttal were denied;
3. In August and September 2011, he was not provided straight time additional pay; and
4. On November 16, 2011, he was falsely accused and treated with malice.
The Agency dismissed Complainant's complaint in its entirety as untimely in accordance with EEOC Regulation 29 C.F.R. � 1614.107(a)(2). Specifically, the Agency found that Complainant contacted an EEO Counselor on June 12, 2012, regarding claims of discrimination occurring in March, April, August, September and November of 2011. In accordance with EEOC Regulation � 1614.105(2), which requires that an aggrieved party must initiate contact with an EEO Counselor within 45 days of the date of the matter alleged to be discriminatory, the Agency found that Complainant's Counselor contact in June 2012, was well beyond the relevant time limitation for timely EEO contact.
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 a 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 record in this matter indicates that Complainant initially contacted an EEO Counselor on April 19, 2011 regarding his concerns of employment discrimination as identified in claims 1 through 4. The Agency acknowledged Complainant's EEO contact by mailing him a package containing a PS Form 2564-A, Information for Pre-Complaint Counseling, asking that he provide basic information necessary to initiate the EEO process. The package also contained a statement advising Complainant that forms not completed and returned within (10) calendar days from receipt may result in the closing of his EEO contact for failure to proceed. The record indicates that on May 1, 2011, Complainant emailed the EEO Counselor informing her that he had received the Agency's EEO package on April 21, 2012, but due to work obligations and pending annual leave, he did not have sufficient time to complete the package. Complainant acknowledged that he had already failed to return the requested information within 10 days as directed in the Agency's letter. He further indicated, however that he intended to continue to pursue his complaint allegations and requested an extension of time in which to complete the requested forms. The record does not reflect that the Agency responded to Complainant's May 1, 2011 email request for additional time. Complainant again emailed the Agency on May 7, 2011 requesting additional time to complete the informal complaint forms and informing the Agency that he would soon, be out of the country on travel. Complainant also provided the Agency with his personal email address that he could access while he was on travel, and asked that the Agency contact him regarding his request for a counseling extension.
In a letter dated May 9. 2011, the Agency, advised Complainant that his April 19. 2011 request for counseling was closed because he had failed to return the requested EEO form or provided the information necessary to begin the processing of his EEO complaint. The letter further advised Complainant to submit a written allegation or completed package within 5 days of his receipt of the correspondence if he believed that the Agency should reconsider its decision to cancel his counseling request. Upon Complainant's return from abroad, he contacted the Agency in a letter dated May 27, 2011. Again, he requested that his time for counseling be extended. The record reflects that Complainant contacted the Agency again in June, July and December of 2011. There is no indication in the record that the Agency replied to Complainant's repeated requests for an extension of the counseling period. Finally, the record indicates that in June 2012, Complainant submitted the EEO package he received in April 2011. The Agency acknowledged receipt of Complainant's June 12, 2012 package and ultimately dismissed his complaint finding that Complainant failed to contact an EEO Counselor in a timely manner.
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. See 29 C.F.R. � 1614.105(a)(2).
The record in this matter indicates that Complainant initially contacted the EEO Counselor regarding his concerns in April 2011. However, the Agency failed to respond to any of Complainant's repeated requests to extend the counseling period. The EEOC Management Directive 110, Section 2-1, at footnote one, states that "the Commission consistently has held that a complainant may satisfy the criterion of EEO Counselor contact by initiating contact with any agency official logically connected with the EEO process, ...and by exhibiting an intent to begin the EEO process." See Kinsa v. Department of Defense, EEOC Request No. 05990249 (May 6, 1999). Upon review of the particular circumstances of the instant matter, we find that the record presents persuasive and sufficient evidence warranting an extension of the time limit for initiating EEO contact and/or finding that Complainant executed due diligence in making timely EEO contact and expressing an intent to begin the EEO process. We find therefore, that the Agency's dismissal was improper.
CONCLUSION
Accordingly, we REVERSE the Agency's final decision dismissing Complainant's complaint. We REMAND the complaint to the Agency for further processing in accordance with this decision and 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
March 22, 2013
__________________
Date
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0120130329
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120130329