0120161796
10-13-2016
Bulah C.,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
Bulah C.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 0120161796
Agency No. 4X-048-0069-15
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated March 29, 2016, dismissing her complaint of unlawful employment discrimination in violation of 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 Mail Processing Clerk at the Agency's Los Angeles Call Center facility in Los Angeles, California.
On February 19, 2015, Complainant contacted the Agency's EEO Office via telephone to raise her claim of discrimination. The Agency denied Complainant's request for pre-complaint EEO processing. Complainant filed an appeal. In EEOC Appeal No. 0120160002 (March 1, 2016), the Commission found that the Agency failed to process her request for EEO Counseling. As such, the Commission ordered the Agency to process Complainant's request for pre-complaint and that the Agency consider February 19, 2015, as the date of contact.
On March 16, 2016, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of disability, age, and reprisal for prior protected EEO activity under the Age Discrimination in Employment Act of 1967 and Section 501 of the Rehabilitation Act of 1973 when, on or about April 8, 2009, Complainant was sent home following a review of her work assignment in connection with the National Reassessment Process (NRP)2 and was not returned to work until March 11, 2013, allegedly without full whole relief for the time she was off work.
The Agency dismissed the complaint pursuant to 29 C.F.R. 1614.107(a)(1) for stating the same claim as a prior EEO complaint. The Agency noted that Complainant filed a prior complaint alleging discrimination when she was placed off work pursuant to the NRP process which was subsumed by the class complaint in McConnell et. al. v. U.S. Postal Serv. The Agency indicated that Complainant appealed the Agency's decision to subsume the matter by the McConnell class action which was the subject of EEOC Appeal No. 0120100350 (March 25, 2010).
The Agency then dismissed the matter pursuant to 29 C.F.R. 1614.107(a)(2) for failure to timely raise the matter with an EEO Counselor. The Agency noted that Complainant had been out of work from April 2009 to March 2013, when she was returned to work. Complainant did not contact the Agency about this claim until February 2015, nearly two years after she was returned to work. The Agency noted that Complainant should have been raise her concerns regarding being "made whole" when she returned to work. As such, the Agency dismissed the matter pursuant to 29 C.F.R. 1614.107(a)(2). In addition, the Agency argued that the matter should be dismissed pursuant to 29 C.F.R. 1614.107(a)(9) for abuse of process.
This appeal followed. On appeal, Complainant indicated that she sought full relief that was not received in her prior EEO complaint. As such, she indicated that the matter was not identical to her prior EEO complaint and argued that here complaint is the same fact pattern in the Commission's decision in Kell v. U.S. Postal Serv., EEOC Appeal No. 0120140958 (April 30, 2014). The Agency requested that the Commission affirm its dismissal.
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 her control from contacting the EEO Counselor within the time limit, or for other reasons considered sufficient by the Agency or Commission.
Upon review of the record, we find that Complainant contacted the EEO Counselor in an untimely manner. Complainant should have known that she did not receive all her benefits when she was returned to her position in March 2013. Complainant did not contact the Agency's EEO Office until February 2015, to raise the instant complaint, well beyond the 45 day time limit. Complainant has not provided any reason to extend the time limit. As such, we find that the Agency's dismissal pursuant to 29 C.F.R. 1614.107(a)(2) 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 (M0416)
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. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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
October 13, 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 We note that the record includes two different dates for this event. Complainant indicated that the meeting regarding the NRP occurred on April 13, 2009, however she also stated that the placement off work occurred on April 8, 2009.
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