0120160408
02-03-2016
Hal T.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Western Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Hal T.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Western Area),
Agency.
Appeal No. 0120160408
Agency No. 1E981002815
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated September 19, 2015, 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was a Mail Handler (Grade 4) at the Agency's Seattle Processing and Distribution Center facility in Tukwila, Washington.
On August 17, 2015, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (white), physical disability (right wrist), and age (57) when, from March 22, 2015 through April 9, 2015, management refused to abide by a step three grievance settlement recertifying him to operate a powered industrial truck ("PIT").
Prior to his position as a mail handler, Complainant worked for the Agency as a PIT operator. When his PIT operating license expired in 2009 or 2010, the Agency would not re-certify him, which Complainant alleges cost him a number of opportunities for higher paying positions within the Agency. Complainant then filed a grievance against the Agency, which progressed to Step 3, before it was resolved via settlement agreement on February 24, 2015. The terms of the agreement required the Agency to recertify Complainant's PIT license no later than March 15, 2015. The Agency missed this deadline and on March 27, 2015, Complainant's union representative filed a grievance for breach of settlement on his behalf. The Agency, stating that it had been unable to locate an official qualified to certify Complainant for PIT operation within the specified time frame, recertified Complainant on April 9, 2015.
The Agency dismissed Complainant's complaint on two grounds: failure to state a claim due to improper forum, pursuant 29 C.F.R. � 1614.107(a)(1) and untimely contact with an EEO Counselor in as required under 29 C.F.R. � 1614.105(a)(1).
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.107(a)(2) states 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, �1614.106 and �1614.204(c), unless the agency extends the time limits in accordance with �1614.604(c).
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. (Complainant v. United States Postal Service (Western Area), EEOC Appeal No. 0120120499 (April 19, 2012))
The Agency found Complainant failed to initiate EEO counseling within the 45 days of the discriminatory act in his complaint, which it identified as the first time it denied Complainant recertification of his PIT license in 2009 or 2010. The Agency also noted that the date of the settlement agreement, February 14, 2015, is also outside the time limitation for Complainant to meet with an EEO counselor, which both parties agree took place on May 5, 2015.
On appeal, Complainant disputes the Agency's interpretation of his complaint, and clarifies that the discriminatory act occurred when the Agency failed to recertify his PIT license by March 15, 2015, in breach of the February 24, 2015 settlement agreement. For this alleged discriminatory act, Complainant's reasonable suspicion could be inferred, triggering the 45 day limitation period, no later than March 16, 2015, the date of the breach. Complainant initiated contact with an EEO counselor 50 days after the alleged discriminatory act.
As Complainant's initial contact with an EEO counselor was untimely, we decline to address the Agency's other grounds for dismissal, improper forum.
CONCLUSION
Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)
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, 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 (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
February 3, 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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