0120161104
04-29-2016
Cecile S.,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
Cecile S.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 0120161104
Agency No. 4X048006715
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated January 26, 2016, dismissing her 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Customer Care Agent at the Agency's Customer Care Center facility in Los Angeles, California.
On January 19, 2016, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of disability, age, and reprisal when: (1) from June 13, 2012, through March 11, 2013, her request for reasonable accommodation was denied and she was sent home following a review of her work assignment in accordance with the National Reassessment Process; (2) from March 11, 2013, her requests for accommodation were denied and she was worked beyond her medical conditions; (3) on April 24, 2014, she was issued a letter of warning; (4) on August 15, 2014, she was issued a seven-day suspension dated August 13, 2014; (5) on November 3, 2014, she was issued a fourteen-day suspension dated October 31, 2014; (6) on April 3, 2015, she was issued a notice of removal ; and (7) on October 9, 2015, she was forced to retire.
The Agency dismissed claims 1-6 as identical to previous complaints.2 The Agency noted that the only claim raised with the EEO counselor was the failure to be "made whole" during the period March 1012 through March 2013, and thus claims 2-7 should be dismissed. Additionally, the Agency stated that all of the claims were untimely raised.
The instant appeal followed.
ANALYSIS AND FINDINGS
Untimely EEO Counselor Contact - Claims 1-5
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.
Complainant first sought EEO counseling on February 24, 2015. As such, we find that claims 1-5, dealing with events from 2012 to October 31, 2014, were clearly raised more than 45 days after the last event and therefore were properly dismissed as untimely raised. We note that Complainant had prior experience in the EEO complaint process and has failed to rebut the presumption that she was aware of the relevant time limitations.
Same Claim As Previously Raised - Claim 6-7
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides that the agency shall dismiss a complaint that states the same claim that is pending before or has been decided by the agency or Commission.
The record shows that in a previously filed complaint (Agency No. 4X-048-0050-14) Complainant raised, among other things, that she was issued a notice of removal on April 3, 2015. That complaint was accepted, investigated and a hearing requested before the EEOC's Los Angeles District Office (Hearing No. 480-2015-00538X). Therefore, the Agency correctly dismissed this claim as raising the same claim as in her earlier complaint. Moreover, we find that Complainant's constructive discharge allegation (claim 7) is so intertwined with her removal that we cannot find it is a separate legal claim. The Agency has contended, and Complainant has not disputed, that she was, in fact, removed from her position and the constructive discharge is just an alternate legal theory regarding her removal. Complainant should raise this theory during the hearing process on her removal rather than in a separate 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
April 29, 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 In Appeal No. 0120142831 (Jan. 28, 2015), we upheld the Agency's dismissal of Agency No. 4X-048-0031-14 due to the untimely filing of the formal complaint. Therein, Complainant alleged discrimination on the bases of race, color, age, disability, and retaliation when on June 19, 2012, she was placed off work due to the National Reassessment Process and from that time through her return to work on March 11, 2013, she was denied compensation for lost benefits and salaries that she would have been entitled to if she had been kept actively employed.
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