0120152881
01-14-2016
Marc 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
Marc L.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Southern Area),
Agency.
Appeal No. 0120152881
Agency No. 1G351002215
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated July 30, 2015, dismissing 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 Supervisor for Distribution Operations (EAS-17) at the Agency's Montgomery Packing and Distribution Center in Montgomery, Alabama.
On July 14, 2015, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the basis of reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when he was involuntarily reassigned even though the other supervisors were awarded positions based on seniority.
While Complainant was on extended leave in or around late 2014, the Agency changed the operation window of the plant where he worked, resulting in schedule changes for a number of managers, including Complainant. The Acting Plant Manager initiated a scheduling review for all management staff in order to reassign them in accordance with the new operation window. The managers were afforded the opportunity to submit their preference among the new schedule options, in consideration of their seniority. Complainant contends that the Agency was obligated to notify him so that pursuant to the seniority system in place at the Agency, he could have first choice of the new schedules. Instead, he was involuntarily reassigned and notified via mail on January 6, 2015, and again on January 14, 2015.
Complainant alleges that he did not find out that the scheduling assignments were based on seniority until he returned to work on March 18, 2015. Believing the Agency used the scheduling change as an opportunity to retaliate against him for prior EEO activity, Complainant initiated EEO counseling on April 3, 2015.2 Counseling and mediation were not successful, so the Agency mailed Complainant a notice of his right to file a formal complaint on June 17, 2015.
The Agency dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a)(2), due to the untimely filing of the formal complaint. The instant appeal followed.
ANALYSIS AND FINDINGS
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). Where there is an issue of timeliness, "an agency always bears the burden of obtaining sufficient information to support a reasoned determination as to timeliness." See Complainant v. United States Postal Service (Western Area), EEOC Appeal No. 0120120499 (April 19, 2012), Guy v. Dep't of Energy, EEOC Request No. 05930703 (Jan. 4, 1994) (quoting Williams v. Dep't of Defense, EEQC Request No. 05920506 (Aug. 25, 1992).
The record discloses that Complainant received the notice of right to file a formal complaint on June 19, 2015. Although the notice indicated that Complainant had to file a formal complaint within fifteen (15) calendar days of its receipt, Complainant did not file his formal complaint until July 14, 2015, which is beyond the limitation period.
On appeal, Complainant disputes the Agency's assertion that its notice of right to file a formal complaint was delivered to his address of record on June 19, 2015 with a signature confirming acceptance. Instead, Complainant states that he never signed for the notice and did not receive it until June 23, 2015, via Priority Mail. He also states that he sent his formal complaint to the Agency on July 2, 2015 which is within the 15 day window to file. Finally, he argues that even if the Agency did not receive his filing until July 14, based on his asserted date of receipt, June 23, 2015, it was still timely.
The record does not support Complainant's claim that he mailed his formal complaint on July 2, 2015. Conversely, the Agency submitted a signed and dated delivery receipt with Complainant's name and street address of record, which constitutes sufficient information to support a reasoned determination as to timeliness. Based on the accepted June 19, 2015 delivery date, Complainant's July 14, 2015 filing was untimely.
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
January 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.
2 Complainant references Agency Case No. 1G351002514 (bases, claims unknown); Complainant's pending EEOC Appeal No. 0120140973 (Title VII, reprisal) also discusses his EEO activity predating this complaint (EEOC Hearing No. 420201300016X (Dec. 10, 2013), Agency Case No. 1G361000312)
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