0120121677
10-19-2012
John R. Banks, Jr., Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Eastern Area), Agency.
John R. Banks, Jr.,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.
Appeal No. 0120121677
Agency No. 4C-400-0068-11
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated December 12, 2011, 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 Postmaster at the Agency's Nortonville, Kentucky Post Office.
On June 12, 2010 Complainant filed a formal complaint, not at issue in the instant appeal, (Agency No. 4C-400-0041-10), regarding non-selections for various Agency positions. After investigation of this formal complaint, a hearing was held before an Administrative Judge (AJ), on July 6 and 7, 2011. On February 14, 2012, the AJ issued a decision on Agency No. 4C-400-0041-10, finding no discrimination. The Agency subsequently implemented the AJ's decision in a final action, dated March 30, 2012.1
In his final decision on Agency No. 4C-400-0041-10, the AJ noted that Complainant had attempted to amend that formal complaint during the hearing, to include a hostile work environment claim. The AJ indicated that he had denied Complainant's request to amend because the Agency was not informed of the alleged hostile work environment, it was not raised during the investigative process, and it was not raised during the pre-hearing conference. The AJ concluded that the Agency had not been put on notice regarding this issue, and the opportunity to address it.
On June 28, 2011, Complainant initiated EEO Counselor contact regarding the hostile work environment issue. Informal efforts to resolve his concerns were unsuccessful.
On November 16, 2011, Complainant filed the subject formal complaint. Therein, Complainant claimed that he was subjected to harassment and a hostile work environment on the bases of race, sex, color, age, and in reprisal for prior EEO activity.
In its December 12, 2011 final decision, the Agency dismissed Complainant's formal complaint pursuant to 29 C.F.R. � 1614.107(a)(2), on the grounds that it was untimely filed. The Agency determined that Complainant received the Notice of Right to File a Discrimination Complaint (hereinafter referred to as "Notice") on October 26, 2011, which notified Complainant that a formal complaint had to be filed within fifteen days of receipt of the Notice. However, the Agency found that Complainant waited until November 16, 2011, to file his formal complaint, which it found to be beyond the requisite fifteen days from the date of the receipt of the Notice.
The Agency also dismissed the formal complaint on the alternative grounds of stating the same matter that was raised in two prior EEO complaints, pursuant to 29 C.F.R. � 1614.107(a)(1). Specifically, the Agency found that the instant formal complaint raises the same matter that was raised in Agency Case Nos. 4C-400-0041-10 and 4C-400-0024-11.
Further, the Agency dismissed the formal complaint on the alternative grounds of untimely EEO Counselor contact, pursuant to 29 C.F.R. � 1614.107(a)(2). The Agency determined that the alleged discriminatory events occurred from 2000 to May 13, 2011, but that Complainant did not initiate EEO Counselor contact until June 28, 2011, which was beyond the 45-day limitation period.
CONTENTIONS ON APPEAL
On appeal, Complainant argues that the instant complaint and a separate EEO complaint identified as Agency No. 4C-400-007-12 were timely filed and that both complaints should be identified under Agency No. 4C-400-007-12, but the Agency "is trying to argue that it is under my actions is under 4C-400-0068-11. That just proves that NEEOISO is not doing its job in investigation and is speaking for the complaint when in fact it is conducting itself as an enemy of the Complainant and has been slothful in conducting its investigation."
Moreover, the record contains a copy of an appellate brief by Complainant's attorney, referencing the captioned Appeal Number. However, this brief is confined exclusively to the finding on the merits of a separate formal complaint, Case No. 4C-400-0041-10, referenced above.
ANALYSIS AND FINDINGS
The regulation set forth at 29 C.F.R. � 1614.107(a)(2) states, in pertinent part, that an Agency shall dismiss a complaint which fails to comply with the applicable time limits contained in 29 C.F.R. � 1614.106, which, in turn, requires the filing of a formal complaint within fifteen (15) days of receiving notice of the right to do so. Based on a thorough review of the record, the Commission concludes that the dismissal, due to the untimely filing of the formal complaint, was proper.
The record in this case contains sufficient evidence reflecting Complainant's acknowledgment of the Notice on October 26, 2011. Specifically, we note that the record contains a copy of the Notice. Therein, Complainant acknowledged receiving the Notice on October 26, 2011 by signing his name. Moreover, the record reflects that Complainant filed the formal complaint on November 16, 2011, after the 15-day limitation period for timely filing a formal complaint. On appeal, Complainant has not presented adequate justification for extending the limitation period.
Accordingly, the Agency's final decision dismissing the instant formal complaint on the grounds of untimely filing was proper and is AFFIRMED.
Because we affirm the Agency's final decision to dismiss the instant formal complaint for the reason stated herein, we find it unnecessary to address alternative dismissal grounds.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 9-18 (November 9, 1999). 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 (Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
October 19, 2012
__________________
Date
1 An appeal from the Agency's final action is pending before the Commission, under Appeal No. 0120121934.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120121677
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120121677
6
0120121677