0120162103
09-22-2016
Fidela B.,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
Fidela B.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Southern Area),
Agency.
Appeal No. 0120162103
Agency No. 4G-752-0131-16
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated May 25, 2016, dismissing her complaint of unlawful employment discrimination in violation of 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 Mail Handler at the Agency's North Texas Processing & Distribution Center facility in Coppell, Texas.
On February 11, 2016, Complainant contacted the EEO Counselor alleging discrimination. Complainant asserted that the Agency violated the ELM 525.132 when they put her off the clock and placed her on Office of Workers Compensation Program (OWCP). She indicated that she was charged a higher rate of premiums for her health care benefits. Specifically, she asserted that she was charged the federal rate rather than the postal rate. Complainant indicated that she had been off work since April 2010 and returned on October 13, 2015. She stated that since November 1, 2015, she has been trying to get her money back for the overpayment of health insurance which occurred in October 2015. She spoke with Human Resources, the Union and her supervisor to get the problem fixed. She was told that she would have to file a Union Grievance. When she could not get the payment issue resolved, she turned to the EEO Office to rectify the situation.
When the matter could not be resolved informally, on May 6, 2016, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the basis of disability when in April, 2010 and on October 12, 2015, she was incorrectly charged for Health and Life Insurance premiums and has not been reimbursed.
The Agency dismissed Complainant's complaint as untimely, pursuant to 29 C.F.R. � 1614.107(a)(2), and for failure to state a claim, pursuant to 29 C.F.R. � 1614.107(a)(1). The instant appeal followed. On appeal, Complainant specifically addressed the Agency's dismissal for failure to state a claim. Complainant did not argue the Agency's dismissal based on untimely EEO Counselor pursuant to 29 C.F.R. � 1614.107(a)(2).
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.107(a)(2) states, in relevant part, that the agency shall dismiss a complaint or a portion of a complaint that fails to comply with the applicable time limits contained in �1614.105. Under �1614.105(a)(l), an aggrieved person must initiate contact with an EEOC Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within 45 days of the effective date of the action.
We note that Complainant was aware of the situation and began addressing the matter with the Agency as early as October 2015 and November 2015. When the matter was not resolved, Complainant waited until February 2016 to contact the EEO Counselor to address the issue at hand. The Commission has adopted a "reasonable suspicion" standard (as opposed to a "supportive facts" standard) to determine when the 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. (Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120120499 (April 19, 2012)).
Here, reasonable suspicion existed well over 45 days prior to Complainant's initial EEO contact in February 2016. Complainant reasonably should have known of the alleged discriminatory act no later than November 2015, when she began the raising the issue with Human Resources, management and the Union. On appeal, Complainant fails to explain why she took over three months to contact the EEO Counselor upon discovering the issue of the health insurance payments. Therefore, we find that the Agency's dismissal of the complaint at hand pursuant to 29 C.F.R. � 1614.107(a)(2) was appropriate.
As this complaint is untimely under EEOC Regulation 29 C.F.R. � 1614.107(a)(2), we decline to review the Agency's alternate grounds for dismissal, failure to state a claim under EEOC Regulation 29 CF.R. � 1614.107(a)(1).
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
September 22, 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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