0120122172
10-17-2012
Mario Ramirez, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southwest Area), Agency.
Mario Ramirez,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southwest Area),
Agency.
Appeal No. 0120122172
Agency No. 4G770006812
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated March 16, 2012, 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 Customer Services Manager at the Agency's facility in Houston, Texas.
On February 28, 2012, Complainant filed a formal EEO complaint alleging that the Agency subjected him to discrimination on the bases of race (Afro-Hispanic), national origin (Honduras), and reprisal for prior protected EEO activity when:
1. On March 27, 2009 through July 30, 2010, he was required to use his personal vehicle for postal business without compensation; and
2. On September 2, 2009, he was placed in an off-duty status without pay.
The question on appeal in this matter is whether the Agency properly dismissed Complainant's complaint, pursuant to 29 C.F.R. � 1614.107(a)(2), on the grounds that he failed to seek EEO counseling in a timely fashion.
The record indicates that Complainant was a member of a class action filed on behalf of supervisors in the Agency's Houston District who have been required to use their personal vehicles for Agency business without compensation. The class complaint was forwarded to an EEOC Administrative Judge (AJ) for determination regarding class certification. By written decision issued on October 27, 2011, the AJ denied certification upon finding that the complaint did not meet the standards for typicality, commonality, numerosity and adequacy of representation. See 29 29 C.F.R. � 204(a)(2)(ii) and (iv). In its final order of November 9, 2011, the Agency implemented the AJ's decision denying class certification.
The record establishes that, after the denial of certification of the class complaint, Complainant first sought EEO counseling in order to file an individual complaint on January 13, 2012. Agency argues that Complainant's contact with an EEO Counselor was untimely regarding events that occurred in March and September 2009.
The instant appeal followed. On appeal, Complainant contends that the Agency was required to notify him of his right to pursue his claim as an individual complaint. Since the Agency did not, Complainant argues that his January 2012 counselor contact cannot be found to be untimely made.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five (45) days of the effective date of the action.
Commencement of a class action, however, suspends the applicable time limit for all asserted members of the class who would have been parties if the class had been certified. Mole v. Department of the Air Force, EEOC Request No. 05910578 (September 25, 1991). Therefore, Complainant's duty to contact an EEO counselor in this case was suspended during the pendency of the class certification decision. The record establishes the Agency's final order adopting the AJ's denial of certification was issued on November 9, 2011. This ended the suspension of limitation period. Accordingly, Complainant was required to initiate contact with an EEO counselor within 45 days of the final denial of certification decision, or by December 27, 2011.1 Complainant did not initiate contact with a counselor until January 13, 2012, which is beyond the forty-five (45) day limitation period.
Complainant has argued that the limitation period should not have started because the Agency did not notify him, as a class member, of his right to pursue an individual complaint once the class complaint was not certified. However, we agree with the Agency and hereby hold that, where class certification has been denied, there is no regulatory requirement that an agency notify potential class members of the dismissal of the class complaint, or of their right to file individual complaints. EEOC regulations governing class procedures (29 C.F.R. � 1614.204 et seq) contain no provision imposing such a duty on an agency; nor is such a duty recognized in guidance elaborating on the regulations. See Management Directive 110, November 9, 1999 at 8-6. See Davenport v. Department of Justice, EEOC Appeal No. 07A30082 (December 5, 2003). Moreover, in reaching this decision we note that the class agent in this matter also serves as Complainant's representative in the instant complaint and had personal knowledge that the class complaint had not been certified and that Complainant was entitled to pursue his concerns as an individual complaint. On appeal, Complainant has presented no persuasive arguments or evidence warranting an extension of the time limit for initiating EEO Counselor contact.
CONCLUSION
Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED for the reasons set forth herein.
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 17, 2012
__________________
Date
1 December 24, 2011 was the 45th day. However, it fell on a weekend and was followed by a holiday, so the first business day was December 27. 29 C.F.R. � 1614.604(d).
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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