0120160770
03-22-2016
Augustine S.,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
Augustine S.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.
Appeal No. 0120160770
Agency No. 1J603005815
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated November 18, 2015, dismissing his complaint of unlawful employment discrimination.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was a former Tractor Trailer Operator at the Agency's South Suburban P&DC facility in Bedford Park, Illinois.
On October 28, 2015, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination. In his complaint, Complainant expresses his dissatisfaction with an August 3, 2011 grievance settlement agreement which removed him from driving and placed him in the mail handler craft. Complainant seems to allege that he was treated differently than other similarly situated employees. However, Complainant did not identify any basis for the alleged discrimination.
The record shows that Complainant was issued a notice of proposed removal on July 14, 2011. On August 3, 2011, with the assistance of the union, Complainant entered into the settlement agreement. The agreement assigned him to the mail handler craft and stated that he could not operate any motorized equipment within one year of the date of the agreement. According to the EEO Counselor's report, Complainant voluntarily resigned from the Agency in May 2014.
The Agency dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely EEO Counselor contact, as well as for failure to state a claim because Complainant did not identify a basis of discrimination. The instant appeal followed.
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 record discloses that the alleged discriminatory event (his reassignment away from driving per the settlement agreement) occurred on or about August 3, 2011, but Complainant did not initiate contact with an EEO Counselor until July 22, 2015, well beyond the forty-five (45) day limitation period. Complainant asserts that he was not aware of his right to file an EEO complaint. However, we note that the record contains a sworn statement that an EEO poster was posted on a bulletin board at the facility where Complainant was employed. The poster had the time limits for contacting an EEO counselor and information on initiating the EEO process. It is well-established by Commission precedent that EEO posters on display in the workplace constitute a presumption of constructive notice of EEO time limits. Drake v. Department of Justice, EEOC Appeal No. 0120131871 (August 5, 2013); Tutwittler v. U.S. Postal Service, EEOC Appeal No. 0120121325 (April 18, 2013); Pride v. U.S. Postal Service, EEOC Request No. 05930134 (August 19, 1993). Here, Complainant has failed to rebut this presumption.
Additionally, the Commission has consistently held that a complainant must act with due diligence in the pursuit of his claim or the doctrine of laches may apply. See Becker v. United States Postal Serv., EEOC Appeal No. 01A45028 (November 18, 2004) (finding that the doctrine of laches applied when complainant waited over two years from the date of the alleged discriminatory events before contacting an EEO Counselor); O'Dell v. Department of Health and Human Serv., EEOC Request No. 05901130 (December 27, 1990). The doctrine of laches is an equitable remedy under which an individual's failure to pursue diligently his course of action could bar his claim. Complainant waited almost four (4) years from the date of the alleged discriminatory event before he contacted an EEO Counselor in July 2015. Complainant has failed to provide sufficient justification for extending or tolling the time limit.
Finally, we note that the settlement agreement was made through the negotiated grievance process. To the extent complainant was not happy with it, he should have raised his concerns within the grievance process - especially since he failed to raise any basis of discrimination with the EEO counselor or in his formal complaint.
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
March 22, 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.
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