0120160943
04-26-2016
Herbert M.,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
Herbert M.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Southern Area),
Agency.
Appeal No. 0120160943
Agency No. 4G350015515
DECISION
Complainant filed a timely appeal with this Commission from the Agency's December 17, 2015, dismissal of 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 worked as a Sales Service Distribution Associate ("SSDA") Clerk at the Agency's Florence, Alabama Post Office.
On November 24, 2015, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (Caucasian), sex (male), religion (Christian), disability (unspecified), age (44), and reprisal for prior protected EEO activity when, on August 1, 2015, he discovered that the Alabama District Human Resource Manager ("HR1") denied his request to transfer to another office.
The Agency dismissed Complainant's complaint for untimely EEO counselor contact pursuant to 29 C.F.R. � 1614.107(a)(2). Alternately, pursuant to 29 C.F.R. � 1614.107(a)(8), it dismissed the complaint as alleging dissatisfaction with the processing of a prior complaint.
The record shows that in or around 2013, pursuant to an EEO Settlement Agreement, Complainant was assigned a window clerk position. After ten months, due to reorganization, Complainant was reassigned to a position that required extensive heavy lifting, which, Complainant argued, breached the Settlement Agreement. Complainant also brought a separate complaint of disparate treatment, noting women employees were not assigned physically demanding positions.
In early November 2014, the alleged discriminatory act in the instant complaint took place when Complainant and the postmaster ("PM") engaged in mediation to resolve prior Complainant's breach and discrimination claims. PM offered and discussed the possibility of reassignment to either the Madison or Huntsville location. PM asked HR1 about a transfer. HR1 explained that because Complainant was the subject of an investigation at the time, he would be denied reassignment through the eReassignment process. HR1 informed PM that he could not make an exception because the Agency's Collective Bargaining Agreement ("CBA") mandated that all employee reassignments had to be processed as contractual eReassignment requests. PM informed Complainant that the reassignment was denied, and the mediation was ultimately unsuccessful.
In an April 18, 2015 signed investigative affidavit concerning an unrelated EEO complaint (Agency No. 4G-350-0046-15), Complainant makes reference to the alleged discriminatory act. In context, when asked for examples of alleged disparate treatment, he stated:
There is currently a female rural carrier in Florence who has been performing sit down duty for a year or so that I am aware of. She is performing clerk duties which should now be assigned to me or I should be provided such duties near my own home due to my medical conditions. I have requested a transfer to an office nearer my home, was told that I would be transferred, and then told my request was denied. No reason was given for the denial after the approval had been given in a redress mediation in early November 2014. (emphasis added)
The Agency argues that the April 18, 2015 affidavit is proof that reasonable suspicion existed over forty-five day before Complainant initiated contact with an EEO Counselor on August 7, 2015. Complainant alleges he did not suspect discrimination until he learned HR1 was the official who denied his reassignment. Complainant alleges HR1 is acting in retaliation and discrimination because he referred to HR1 as a "liar" in past correspondence and HR1 did not intervene in transfer requests by employees outside Complainant's protected classes. Complainant alleges that PM has the authority to reassign employees, and that HR1 exceeded his authority by denying the reassignment. Moreover, Complainant alleges HR1 lied to management officials in order to deny the transfer as a means of retaliating and discriminate against him.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.107(a)(2) provides, 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. 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 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.
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. United States Postal Serv., EEOC Appeal No. 0120120499 (April 19, 2012))
Where, as here, there is an issue of timeliness, "[a]n agency always bears the burden of obtaining sufficient information to support a reasoned determination as to timeliness." Guy v. Dep't of Energy, EEOC Request No. 05930703 (January 4, 1994) (quoting Williams v. Dep't of Defense, EEOC Request No. 05920506 (Aug. 25, 1992)). We find the Agency met this burden with the April 18, 2015 signed affidavit in which Complainant specifically cites the denied reassignment discussed during mediation as an example of the Agency's alleged discriminatory actions.
We find, based on the affidavit, reasonable suspicion that the denied reassignment was an allegedly discriminatory act, existed on April 18, 2015 (and likely earlier). Complaint waited to contact an EEO Counselor August 7, 2015, which is beyond the 45 day limitation period. Complainant appears to argue that the 45 day time limit should begin on August 1, 2015, when he learned that it was HR1 who denied his reassignment. However, as stated above, all that is necessary to trigger the time limitation is reasonable suspicion. On appeal, Complainant has presented no persuasive arguments or evidence warranting an extension of the time limit for initiating EEO Counselor contact.
We also concur with the Agency's alternate grounds for dismissal. The regulation set forth at 29 C.F.R. � 1614 107(a)(8) provides that an agency shall dismiss claims alleging dissatisfaction with the processing of a prior complaint. Upon review, we find Complainant's claim arises from dissatisfaction with the outcome of mediation in a prior complaint, and therefore was properly dismissed.
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
April 26, 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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