0120161110
04-26-2016
Marlin B.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Great Lakes Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Marlin B.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.
Appeal No. 0120161110
Hearing No. 443-2015-00030X
Agency No. 1J-531-0037-14
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated December 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 applied for the Manager, Maintenance Operations Support, at the Agency's Processing and Distribution Center in Madison, Wisconsin. Complainant had been acting in the position at the time.
Complainant was informed by the Selecting Official2 that he was not selected for the position in question and that the Selectee (female) was chosen for the Manger position. During the following week, Complainant submitted an email to the Selecting Official stating that, now that he has been verbally informed that he would not be getting the Manager position, he no longer wanted to continue his detail to the Acting Manager position. Complainant had been in the Acting Manager position for over three years.
On April 4, 2014, Complainant contacted the EEO Counselor alleging discrimination. We note that EEO Counselor's report indicated that Complainant told her that he was not informed of the selection of the Selectee until February 22, 2014. When the matter could not be resolved informally, the Agency provided him with the Notice of Right to File a Formal Complaint. On July 11, 2014, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of sex (male) and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when, on February 22, 2014, he was denied a promotion to the position of Manager Maintenance Operations Support.
The Agency accepted the complaint for investigation. Following the investigation, Complainant was issued the Report of Investigation and requested a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ1). On January 29, 2015, the Agency moved to dismiss the Complainant's hearing request for failure to initiate contact with an EEO counselor within 45 days of learning he was not selected for a position in favor of a female employee. On February 12, 2015, Complainant responded to the Agency's motion. The matter was then assigned to a new EEOC AJ (AJ2).
AJ2 issued a decision on December 7, 2015, dismissing the complaint at hand pursuant to 29 C.F.R. �1614.107(a)(2). AJ2 noted that Complainant indicated in his affidavit that he became aware that the Selecting Official chose the Selectee on February 10, 2014. AJ2 indicated that Complainant now asserted that he believed the Selecting Official was joking on February 10, 2014. Subsequently, on February 19, 2014, the Selecting Official sent out an email informing the staff of his decision to choose Selectee who would begin working in the Manager position on February 22, 2014. On March 5, 2014, Complainant received formal notice from the Agency that he was not selected for the Manager position. On April 4, 2014, Complainant contacted the EEO Counselor. AJ2 determined that Complainant became aware of the decision of the Selecting Official on February 10, 2014, as stated in his sworn affidavit. AJ2 noted that Complainant's assertion that he believed that the Selecting Official was joking is contrary to the record at hand and his sworn statement. Therefore, AJ2 determined that Complainant's contact of the EEO Counselor on April 4, 2014, was beyond the 45 day time limit. As such, AJ2 dismissed the complaint for untimely EEO Counselor contact pursuant to 29 C.F.R. � 1614.107(a)(2).
The Agency implemented AJ2's decision dismissing the complaint.
This appeal followed. On appeal, Complainant argued that the EEO posters posted within the Agency state that, "if a personnel action is involved" contact must be made within "45 calendar days of its effective date." As such, Complainant argued that the effective date of the Selectee's promotion was the February 22, 2014, and his contact on April 4, 2014, was timely. The Agency requests that the Commission affirm its implementation of AJ2's decision.
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). 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 personnel action, within forty-five (45) days of the effective date of the action. 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. Dep't. 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.
We note that in the record at hand, Complainant has provided a variety of dates for when he became aware of the alleged discrimination. The EEO Counselor clearly noted in her report that Complainant stated that he was not aware of the selection of the Selectee until February 22, 2014. Complainant also stated on his formal complaint that the alleged discrimination occurred on February 22, 2014. However, in his sworn affidavit, Complainant informed the EEO Investigator that he was told by the Selecting Official that he chose the Selectee for the position in question on February 10, 2014. In his response to the Agency's motion to dismiss, Complainant indicated to AJ2 that he was informed on February 10, 2014, by the Selecting Official that the Selectee, a woman, was chosen for the position in question. The following week, Complainant told the Selecting Official that he would no longer perform the duties of the Acting Manager position. The Selectee began her new position as the Manager effective February 22, 2014.
As noted above, 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. However, sometimes Complainants do not develop a reasonable suspicion of discrimination until after the effective date of a personnel action. In that case, the Agency may extend the 45-day period. See EEOC's Report "Preserving Access to the Legal System: Common Errors by Federal Agencies in Dismissing Complaints of Discrimination on Procedural Grounds" (Sept. 15, 2014). This is not the case herein.
The action at issue in the instant complaint is the denial of the promotion to Complainant. On February 10, 2014, the Selecting Official clearly stated to Complainant that he chose the Selectee for the position in question. Therefore, we determine that Complainant was clearly aware of the selection of the Selectee on that date. Complainant did not contact the EEO Counselor until April 4, 2014, beyond the 45 day time limit. In summary, Complainant did not present persuasive arguments or evidence warranting an extension of the time limit for initiating EEO Counselor contact. See 29 C.F.R. � 1614.604(c).
CONCLUSION
The Agency's final order implementing AJ2's decision dismissing Complainant's formal complaint for the reasons stated herein 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
April 26, 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 The record indicated that the Selecting Official was Complainant's Supervisor.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120161110
5
0120161110