0120161621
06-29-2016
Edmund L.,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
Edmund L.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Southern Area),
Agency.
Appeal No. 0120161621
Agency No. 1K-271-0016-16
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated February 29, 2016, dismissing a formal 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 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 Mail Processing Clerk at the Agency's Processing and Distribution Center (P&DC) in Greensboro, North Carolina.
On January 7, 2016, Complainant initiated EEO Counselor contact. Informal efforts to resolve his concerns were unsuccessful.
On February 19, 2016, Complainant filed the instant formal complaint, claiming that the Agency subjected him to discrimination on the bases of race, sex, color, and age when:
1. on January 10, 2015, Complainant's request to have his supervisor or himself moved from the work location was denied, and on January 3. 2016, Complainant became aware that based on a coworker's request his supervisor was moved to another tour; and,
2. on July 23,2015, through August 25,2015, Complainant was removed from his position due to an incident involving his supervisor.
On February 29, 2016, the Agency issued the instant final decision. The Agency determined that Complainant's pre-complaint request was made 362 and 135 days, respectively, after the allegedly discriminatory events identified in claims 1 and 2, and that the initial EEO contact was beyond the 45-day time frame for contacting an EEO Counselor. The Agency dismissed the entire formal complaint on the grounds of untimely EEO Counselor contact, pursuant to 29 C.F.R. 1614.107(a)(2).
Additionally, regarding claim 2, the Agency determined that Complainant had claimed the same matters/issues in a separate complaint, identified as Agency Case #1K-271-0039-15. The Agency determined that the alleged matters/issues in claim 2 are simply reiterations that have been previously raised. The Agency determined that there is no indication that the original fact pattern in case #1K-271-0039-15 is distinctly different from that of the issues Complainant have raised in the instant complaint. Therein, the Agency also dismissed claim 2 pursuant to 29 C.F.R. �1614.106(a), determining that the current claim states the same claim that was previously decided by the Agency.
On appeal, Complainant contends that the July 23, 2015 and August 25, 2015 dates that are identified in claim 2, are just background facts which are pertinent to the case. Complainant states that he was suspended when management previously refused to move Complainant or the supervisor following a conflict between the parties. Complainant states that he was only recently made aware on January 3, 2016 that there was evidence that management moved the supervisor specifically due to a conflict he recently had with another employee. Complainant contends that this action prompted him to file the EEO complaint because the information was not previously available to him. Complainant contends that the Agency prematurely misstated important issues and misinterpreted EEO guidelines and procedures when it dismissed his case.
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. Department of the Navy, EEOC Request No. 05970852 (February 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.
Based on the case chronology Complainant did not make initial EEO contact until January 7, 2016, this was 362 and 135 days, respectively, after the allegedly discriminatory events, and clearly beyond the 45 day time frame for contacting an EEO Counselor. We have reviewed the appellate arguments advanced by Complainant, that he was not aware of a comparator until recently, and chose to file his complaint based on this new comparator. However, the discovery of a new comparator does not give rise to a new complaint of discrimination. Gunn v. U.S. Postal Service, EEOC Appeal No. 0120100031 (March 18, 2010); Miller v. U.S. Postal Service, EEOC Appeal No. 0120080981 (March 7, 2008). Accordingly, we find that Complainant failed to provide sufficient justification for extending the time limit for contacting an EEO Counselor.
The Agency's final decision dismissing the formal complaint on the grounds of untimely EEO contact is AFFIRMED.
Because we affirm the dismissal for the reason stated herein, we will not address alternative dismissal grounds.
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.
Carlton M. Hadden, Director
Office of Federal Operations
June 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.
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