0120161493
06-23-2016
Christopher E.,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
Christopher E.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Southern Area),
Agency.
Appeal No. 0120161493
Agency No. 4G320005116
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated February 18, 2016, 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
At the time of events giving rise to this complaint, Complainant was a former City Carrier who had worked at the Agency's Forest Hills Station in Augusta, Georgia.
On February 11, 2016, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the basis of reprisal when, on or around August 21, 2008, he was issued a decision letter upholding his proposed removal, effective September 13, 2008.
The Agency dismissed the complaint for untimely EEO counselor contact and for raising the same claim in an earlier complaint. 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.
Here, Complainant initiated contact with an EEO counselor on January 6, 2016, more than seven years after the effective date of his removal and well beyond the 45-day limitation period.
On appeal, Complainant is asserting that his untimely contact should be excused because misconduct on the part of Agency officials. Among other things, Complainant is claiming that the Georgia Department of Labor ruled that his removal was invalid. We are not persuaded by Complainant's arguments. It is undisputed that Complainant received the Agency's 2008 decision upholding his removal, which clearly articulated the asserted reasons for that removal. The record also shows that Complainant filed a union grievance on the removal in September 2008, which was settled at step 2 in December 2008 between the Agency and the union with an agreement that Complainant's removal would not be rescinded. With regard to the decision of the Georgia Department of Labor, we noted that it was issued in June 2009, and only addresses Complainant's entitlement to unemployment insurance and not the validity of the removal decision. Finally, we note that in December 2009, Complainant filed an earlier EEO complaint (Agency No. 4H-310-0008-10) alleging unlawful retaliation when he asserted he learned that his removal record contained false documents.2 In sum, Complainant has not provided adequate justification for the seven-year delay in this case.
Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED.
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
June 23, 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 The Agency dismissed this complaint as untimely and there is no record of Complainant appealing the dismissal to this Commission.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120161493
2
0120161493