Darrin F,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Headquarters), Agency.Download PDFEqual Employment Opportunity CommissionNov 16, 20180120182652 (E.E.O.C. Nov. 16, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Darrin F,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Headquarters), Agency. Appeal No. 0120182652 Agency No. 66-000-0012-18 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated June 26, 2018, dismissing a formal complaint of unlawful employment discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND During the period at issue, Complainant worked as a Physical Security Specialist for the Agency in Indianapolis, Indiana. On March 2, 2018, Complainant initiated EEO contact. Informal efforts at resolution were not successful. On June 12, 2018, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination based on. In its final decision, the Agency determined that Complainant’s complaint was comprised of the following claim: 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. 0120182652 2 on July 21, 2017, [Complainant was] given a direct order that [he] must have a residence within a 50-mile radius [from his] Indianapolis domiciled location.2 In its final decision, dated June 26, 2018, the Agency dismissed the formal complaint for untimely EEO Counselor contact. The Agency reasoned that the alleged discriminatory act occurred on July 21, 2017, but that Complainant did not initiate EEO contact until March 2, 2018, outside of the applicable time period. The Agency stated that “[Complainant was] in [his] position] for nearly two years before [he was] notified in July 2017 that he needed to maintain a residence closer to [his] domiciled work location. The July 21, 2017 phone call and subsequent certified letter instructing [him] to establish a residence closer to Indianapolis were more than enough to provide [him] with a reasonable suspicion of discrimination and there was not [a] need to wait until [he] could provide confirmation that the order was possibly discriminatory.” The instant appeal followed. Complainant does not submit a statement or brief in support of his appeal. 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 Commission has adopted a "reasonable suspicion" standard (as opposed to a "supportive facts" standard) to determine when the forty-five (45) day limitation period is triggered. See Howard v. Dep’t of the Navy, EEOC Request No. 05970852 (Feb. 11, 1999). Thus, the time limitation is not triggered until a complainant reasonably suspects discrimination, but before all the facts that support a charge of discrimination have become apparent. 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. 2 While the Agency, in its final decision, lists the date of the alleged incident as June 21, 2017, rather than July 21, 2017, this appears to be due to an inadvertent error. 0120182652 3 The Agency properly dismissed Complainant’s complaint for untimely EEO Counselor contact. We determine that Complainant reasonably suspected, or should have reasonably suspected, discrimination in July 2017, when he received a direct order from the Inspector-in-Charge that he needed to reside within 50 miles of his Indianapolis domiciled location.3 We acknowledge that the EEO Counselor’s Report sets forth that on February 2, 2018, Complainant asserts that he received a copy of the vacancy announcement for the position he accepted in 2015 and then realized his position did not require relocation. However, we are not persuaded that Complainant did not reasonably suspect discrimination prior to receiving a copy of the job announcement in February 2018. The record contains a copy of Complainant’s Information for Pre-Complaint Counseling form. Therein, Complainant states that on February 2, 2018 “[he] received confirmation that [his] position did not require [him] to have a residence within a 50- mile radius…This confirmed that the certified letter (dated July 21, 2017) requiring this was to create yet another hardship to coerce [him] to resign [from his] position.” (emphasis added). Based on the foregoing, we find that Complainant reasonably suspected discrimination prior to February 2018 (prior to receiving a copy of the vacancy announcement). As set forth above, the time limit begins to run when a complainant reasonably suspects discrimination, not when he or she has discovered all facts necessary to support a finding of discrimination. We AFFIRM the Agency’s final decision dismissing the formal complaint for untimely EEO Counselor contact. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) 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. A party shall have twenty (20) calendar days of receipt of another party’s timely request for reconsideration in which to submit a brief or statement in opposition. 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. Complainant’s request 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. 3 Complainant also received a certified letter during July 2017 providing the same directive. 0120182652 4 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 agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 November 16, 2018 Date Copy with citationCopy as parenthetical citation