0120122997
12-18-2012
Joseph J. Jackson, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southwest Area), Agency.
Joseph J. Jackson,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southwest Area),
Agency.
Appeal No. 0120122997
Agency No. 1G-787-0017-12
DECISION
On July 18, 2012, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEEOC or Commission) from a final Agency decision (FAD) dated June 18, 2012, dismissing his complaint of unlawful employment discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
At the time of the earlier events giving rise to this complaint, Complainant worked as a Casual at the Agency's Austin Processing & Distribution Center (P&DC) in Austin, Texas.
On April 3, 2012, Complainant filed a formal complaint which the Agency defined and initially accepted as alleging he was discriminated against based on his age (66) when from January 7, 2012, to present he was denied the opportunity to apply for employment. The Agency EEO counselor previously defined Complainant's claim as regarding being separated on August 5, 2011, and from December 2010 to December 2011, being denied the opportunity to take an exam for rehire.
In his EEO complaint Complainant alleged that he was replaced by younger workers, and was denied the opportunity to take an exam to get rehired, and that this was denial was ongoing through the present time. In its acceptance letter, the Agency strongly suggested it was only defined events which occurred within 45 days before Complainant initiated EEO counseling on February 22, 2012.
After the start of the EEO investigation, the Agency dismissed Complainant's complaint. Based upon Complainant's affidavit, it redefined his complaint as alleging age discrimination when in June 2011, he was denied the opportunity to take an employment examination. The Agency dismissed the complaint, as defined, for failure to timely initiate EEO counseling. It reasoned that Complainant did not initiate EEO counseling until February 21, 2012, beyond the 45 calendar day time limit. It also dismissed the complaint on the grounds that Complainant filed a civil action on the same matter.
On appeal Complainant writes his back pay claim, an apparent reference to his separation, began in August 2011, and his back pay claims are "immune" from timeliness. He was separated at the end of his term.
ANALYSIS AND FINDINGS
On December 12, 2011, Complainant filed civil action complaint 1:11-cv-00750 in the United States District Court, Western District of Texas. He alleged discrimination when he was terminated on August 5, 2011, and was required to take an exam to get rehired, but was not allowed to take the exam and the Agency did not respond to his requests for exam scheduling. The Court dismissed the civil action without prejudice on February 7, 2012. Because the civil action was dismissed without prejudice, we decline to affirm the Agency's dismissal of the administrative complaint under 29 C.F.R. � 1614.107(a)(3) for a civil action being filed on the same matter. Patel v. Department of Veterans Affairs, EEOC Request No. 05920346 (May 12, 1992).
An aggrieved person must seek EEO counseling within 45 days of the date of the alleged discriminatory action, or in the case of a personnel action, within 45 days of the effective date of the action. 29 C.F.R. � 1614.105(a)(1) & .107(a)(2). The time limit to seek EEO counseling shall be extended when an individual shows he did not know and reasonably should not have known that the discriminatory action or personnel action occurred. 29 C.F.R. � 1614.105(a)(2). 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. Department 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.
While the Agency did not define this issue, Complainant alleged in his complaint that he was discriminated against based on his age when he was removed on August 5, 2011. On appeal, Complainant writes that he suspected discrimination on his "pay dispute," an apparent reference to his removal, in August 2011. Applying the above regulation, we find Complainant failed to timely initiate EEO counseling on this matter, and this issue is dismissed.
In his EEO investigatory affidavit which included submissions by him, Complainant clarified that the opportunity to apply for employment issue regarded being denied the opportunity to apply or take an employment exam from June 2011 to the present time. In his complaint, he indicated he was not allowed to take an employment examination in June, July, and August, 2011, through the present time. With his investigative affidavit he argued this was discriminatory under the disparate treatment and disparate impact theories of discrimination.
In dismissing the complaint, the Agency defined it as regarding being denied the opportunity to take an employment examination in June 2011. We find the correct remaining issue regards Complainant being denied the opportunity to apply or take an employment examination from June 2011 forward.
On appeal, Complainant argues that he was not aware this matter was discriminatory until August 2011, when a co-worker testified before a judge that the same thing happened to him. Assuming this to be the case, this does not justify his delay in initiating EEO counseling until February 21, 2012. We agree with the Agency's finding in its FAD that a denial of an employment examination for hire or rehire is a discrete action. Accordingly, we find that Complainant's complaint is timely regarding employment examinations he was denied from applying for or taking from January 7, 2012, onward.
The FAD is MODIFIED. The Agency shall comply with the Order below.
ORDER
The Agency is ordered to process the remanded claim in accordance with 29 C.F.R. � 1614.108. The remanded claim is whether Complainant was discriminated against (disparate treatment and impact theories of discrimination) based on his age (66) when he was denied the opportunity to apply or take an employment examination for rehire or hire from January 7, 2012, onward. The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision becomes final. The Agency shall issue to Complainant a copy of the investigative file and also shall notify Complainant of the appropriate rights within one hundred fifty (150) calendar days of the date this decision becomes final, unless the matter is otherwise resolved prior to that time. If the Complainant requests a final decision without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of Complainant's request.
A copy of the Agency's letter of acknowledgment to Complainant and a copy of the notice that transmits the investigative file and notice of rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 (T0610)
This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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
December 18, 2012
__________________
Date
2
0120122997
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120122997