0120160045
01-06-2016
Charlie K.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Charlie K.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Southern Area),
Agency.
Appeal No. 0120160045
Agency No. 4G-760-0054-15
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated August 17, 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
During the period at issue, Complainant worked as an Operations Program Specialist at the Agency's Fort Worth, Texas District Office.
On April 7, 2015, Complainant initiated EEO Counselor contact. Informal efforts to resolve his concerns were unsuccessful.
On July 17, 2015, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency subjected him to discrimination on the basis of reprisal for prior EEO activity (for submitting a lateral request to the Product Information Quality Analyst position to the Manager of Operations Programs Support and approved by her and Local HR and the DREA) when:
1. on November 13, 2014, he was notified that his request for a lateral transfer was approved; and
2. on February 23, 2015, he received a Letter of Non Selection for a position he applied for.
In its August 17, 2015 final decision, the Agency dismissed claim 1 on the grounds of untimely EEO Counselor contact, pursuant to 29 C.F.R. � 1614.107(a)(2). The Agency determined that Complainant's initial EEO Counselor contact was on April 7, 2015, which it found to be beyond the 45-day limitation period.
Further, the Agency dismissed claim 2 pursuant to 29 C.F.R. � 1614.107(a)(1), for failure to state a claim. Specifically, the Agency found that Complainant did not engage in any prior protected EEO activity.
Complainant, on appeal, states that he discussed claim 1 with the EEO Counselor "as a matter of fact only. My Complaint is purely based on the subsequent action due to this subjective matter." Regarding claim 2, Complainant states that reprisal as a basis was used "to indicate to describe the incident of my non selection for the applied post because of my previous application for Lateral Entry to the same post, approval of the same by the Manager and Local HR which was against the 'wish' and or 'Preference' of the Hiring Manager who preferred another candidate."
The instant appeal followed.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.101(b) provides that no person shall be subject to retaliation for opposing any practice made unlawful by Title VII, the Age Discrimination in Employment Act, the Equal Pay Act, or the Rehabilitation Act, or for participating in any stage of administrative or judicial proceedings under those statutes. In order to establish discrimination based on retaliation, an individual must initially be able to show that he or she engaged in prior EEO activity based on 29 C.F.R. � 1614.101(b).
Although the Agency dismissed claim 1 on the grounds of untimely EEO Counselor contact, we find that it is more properly analyzed as whether it states a claim, for the same reason addressed by the Agency in its analysis of claim 2. A review of the formal complaint and EEO Counselor's Report reflect that Complainant does not claim on appeal that he engaged in any protected EEO activity under the Commission's jurisdiction. As reprisal was the sole basis raised, we find that the dismissal of the instant formal complaint for failure to state a claim was proper.
The Agency's final decision dismissing Complainant's formal complaint for the reasons stated herein is AFFIRMED.2
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 6, 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 Because we affirm the Agency's dismissal of claim 1 for the reason stated herein, we find it unnecessary to address alternative dismissal grounds (i.e. untimely EEO Counselor contact).
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