0120161470
06-14-2016
Laurence L.,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
Laurence L.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Southern Area),
Agency.
Appeal No. 0120161470
Agency No. 4G-752-0001-16
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated February 25, 2016, dismissing his complaint of unlawful employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Letter Carrier at the Agency's Joe Pool Station facility in Dallas, Texas.
The record indicated that Complainant was not returned to duty after the Agency placed him off duty effective December 20, 2010, pursuant to the National Reassessment Program (NRP). On September 25, 2015, Complainant indicated that he reviewed his Office of Workers Compensation Program (OWCP) case file. At that time, he reviewed an OWCP document dated January 2011, which he believed indicated that the Agency subjected him to discrimination.
On October 2, 2015, Complainant contacted the EEO Counselor. On February 3, 2016, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the basis of disability when, on September 25, 2015, he reviewed his OWCP case file and determined that the Agency subjected him to discrimination when he was not returned to duty after the NRP placed him off duty effective December 20, 2010.
The Agency dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a)(2) for untimely EEO Counselor contact. The Agency noted that Complainant has not been on duty with the Agency since the NRP effective December 20, 2010. He was aware of the Agency's action effective December 20, 2010. Complainant did not contact the EEO Counselor until October 2016, just shy of six years from the date he was placed off duty. Furthermore, the Agency stated that doctrine of laches applies and that the matter should be dismissed for untimeliness.
The Agency also noted that the matter should be dismissed pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim. The Agency noted that Complainant alleged that he believed the Agency's failure to return him to duty was discriminatory when he read his OWCP case file. The Agency found that Complainant alleged a collateral attack on the OWCP process. As such, the Agency dismissed the compliant pursuant to 29 C.F.R. � 1614.107(a)(1).
This appeal followed.
ANALYSIS AND FINDINGS
Failure to State a Claim
We note that the Agency dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a)(1). The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in relevant part, that an agency shall dismiss a complaint that fails to state a claim. An agency shall accept a complaint from any aggrieved employee or applicant for employment who believes that he or she has been discriminated against by that agency because of race, color, religion, sex, national origin, age or disabling condition. 29 C.F.R. �� 1614.103, .106(a). The Commission's federal sector case precedent has long defined an "aggrieved employee" as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994).
Upon review of the record and Complainant's statement on appeal, we find that Complainant asserted that Complainant was subjected to discrimination beginning in December 2010 when, by operation of the NRP, he was placed in an off duty status. In support of his claim, Complainant pointed to a document found in his OWCP case file. We determine that Complainant alleged discrimination regarding the Agency's decision to place him in an off duty status pursuant to the NRP and not what he discovered in the OWCP case file. Therefore, we find that the Agency's dismissal of the complaint pursuant to 29 C.F.R. � 1614.107(a)(1) was not appropriate.
Untimely EEO Counselor Contact
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) provides that an aggrieved person must initiate contact with an EEO 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. EEOC Regulation 29 C.F.R. �1614.105(a)(2) allows the Agency or the Commission to extend the time limit if the complainant can establish that Complainant was not aware of the time limit, that Complainant did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence Complainant was prevented by circumstances beyond his control from contacting the EEO Counselor within the time limit, or for other reasons considered sufficient by the Agency or Commission.
Upon review of the record, we find that the crux of Complainant's claim of discrimination is that the Agency failed to return him to duty pursuant to the NRP beginning in December 2010. Complainant was aware of the alleged discrimination when he was placed in the off duty status effective December 2010. Complainant did not contact the EEO Counselor until October 2016, nearly six years from the date he was placed in an off duty status. Complainant asserted that he did not become aware of the alleged discrimination until he read a document in his OWCP case file dated January 2011. On appeal, Complainant has presented no arguments or evidence warranting an extension of the time limit for initiating EEO Counselor contact. As such, we find that the Agency's dismissal of the complaint pursuant to 29 C.F.R. � 1614.107(a)(2) was appropriate.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final decision dismissing the complaint at hand.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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. The requests 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 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
June 14, 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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