0120141366
07-11-2014
Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Western Area), Agency.
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Western Area),
Agency.
Appeal No. 0120141366
Agency No. 4E840006312
Hearing No. 551-2013-00109X
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated October 10, 2013, 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., and 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 Full Time Lead Mail Processing Clerk at the Agency's Mail Handling Annex in Pocatello, Idaho.
On October 9, 2012, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of disability and reprisal when he was subjected to a hostile work environment, was micromanaged and, in November 2011, his 204B duties were taken from him.
The Agency initially accepted the complaint for investigation. Following the investigation, Complainant requested a hearing. Thereafter, on September 4, 2013, the Agency submitted a motion to dismiss the complaint to the Administrative Judge (AJ), asserting Complainant failed to contact an EEO counselor in a timely manner. On September 24, 2013, the AJ issued a decision granting the Agency's motion to dismiss.
The AJ found that the Agency accepted claims that occurred between mid-2011 and November 18, 2011. The EEO investigation included additional events that occurred on April 17, 2012. The AJ noted that even the added claims occurred more than 90 days before Complainant's initial July 26, 2012 EEO counselor contact. The AJ further noted that Complainant did not file a response to the Agency's motion to dismiss.
The Agency adopted the AJ's decision to dismiss. The instant appeal followed. In his appeal Complainant asserts he was not aware of the time limit for contacting an EEO counselor.
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 latest alleged discriminatory event occurred on April 17, 2012, but Complainant did not initiate contact with an EEO Counselor until July 26, 2012, which is beyond the forty-five (45) day limitation period.
EEOC regulations provide that the agency or the Commission shall extend the time limits when the individual shows that he was not notified of the time limits and was not otherwise aware of them, that he did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence he was prevented by circumstances beyond his control from contacting the Counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission.
In the instant case, the Agency has provided sworn statements that EEO posters are posted at the facility where Complainant was employed, and that the posters contained the relevant information regarding the time limits for contacting an EEO counselor. In his appeal, Complainant does not dispute that the posters are at the facility. Rather, he argues that the Agency did not clearly mark the EEO information on its notice board. Further, Complainant states that he contacted his attorney in April 2012, who advised him in June 2012 that he should proceed through the EEO forum. Thereafter he contacted an EEO counselor on July 26.
After careful consideration of Complainant's arguments on appeal, we find that Complainant has presented no persuasive arguments or evidence warranting an extension of the time limit for initiating EEO Counselor contact.
Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 9-18 (November 9, 1999). 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 (Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
July 11, 2014
__________________
Date
2
0120141366
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120141366