0120172650
09-18-2018
Israel A,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Eastern Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Israel A,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.
Appeal No. 0120172650
Agency No. 1B072003917
DECISION
Complainant timely appealed with the Equal Employment Opportunity Commission ("EEOC" or "Commission") from the Agency's June 5, 2017, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Mailhandler at the Dominick V. Daniels Processing and Distribution Center in Kearny, New Jersey.
On May 11, 2017, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (African-American), sex (male), and reprisal for prior protected EEO activity (Agency Nos. 1B072002016 and 1B072003015) when:2
On February 2, 2015, he was issued a Notice of Removal for Failure to be Regular in Attendance, without being provided with a "Last Chance Agreement."
Complainant's removal became effective on March 6, 2015, despite his requests for a "Last Chance Agreement." As an employee of the Agency for 18 years, Complainant alleges that it was customary to provide a "Last Chance Agreement" where the Notice of Termination related to time and attendance. Complainant pursued a grievance on the matter, which escalated to arbitration on June 25, 2015. On August 12, 2015, the Arbitrator upheld Complainant's removal. For the instant complaint, and on appeal, he provides copies of grievance decisions for other Agency employees who were treated more favorably in similar situations.
The Agency dismissed Complainant's complaint pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely EEO Counselor contact. Alternately, the Agency found that Complainant's complaint failed to state a claim pursuant to 29 C.F.R. � 1614.107(a)(1), contending that Complainant previously raised the same claim in another EEO complaint, and that the appropriate forum for his complaint was through the negotiated grievance process. 3
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)(1), 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.
Given Complainant's prior EEO activity, we note that the Commission has consistently held that a complainant who has engaged in prior EEO activity is deemed aware of the time frames required for filing complaints in the EEO procedure. See Williams v. Dep't of Homeland Security, EEOC Appeal No. 0120111236 (Oct. 4, 2011) citing Coffey v. Dep't. of the Navy, EEOC Request No. 05901006 (Nov. 16, 1990) (other citations omitted).
The alleged discriminatory event, the Agency's failure to provide Complainant with a "Last Chance Agreement" occurred on or around February 2, 2015, and the effective date of the employment action was March 6, 2015. Complainant's initial EEO contact for this complaint occurred well over 45 days later, on March 21, 2017. On appeal, Complainant has presented no persuasive arguments or evidence warranting an extension of the time limit for initiating EEO Counselor contact. Accordingly, we find that the Agency properly dismissed Complainant's complaint for untimely EEO Counselor contact pursuant to 29 C.F.R. 1614.107(a)(2).
As Complainant's complaint is untimely, we decline to analyze the Agency's alternate grounds for dismissing his complaint, except to clarify to Complainant that providing a new evidence, such as a comparison employee, or arguing a different theory of law does not create a new claim. See Doleshal v. HHS, EEOC Appeal No. 01A40020 (Jul. 29, 2004).
CONCLUSION
Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED.
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. 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
September 18, 2018
__________________
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.
2 Agency No. 1B072003015 also raised the issue of the February 2, 2015 Notice of Removal, but was never filed as a formal EEO Complaint.
3 Complainant raised the August 12, 2015 decision on his February 2, 2015 Notice of Removal in Agency Case No. 1B072007015, EEOC Appeal No. 0120160532 (Feb. 26, 2016) (finding failure to state a claim because the alleged discriminatory actions constituted an attempt to use the EEO process to lodge a collateral attack on another proceeding (i.e. the grievance process) and alternately because he already raised the same claim in Agency Case No. 1B072003015).
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