0120161389
05-24-2016
Minh G.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southwest Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Minh G.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Southwest Area),
Agency.
Appeal No. 0120161389
Agency No. 4G-752-0075-16
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated February 9, 2016, 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. and 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 Part-Time Flexible Carrier at the Agency's Processing and Distribution Center in Coppell, Texas. The record indicated that Complainant was placed out of work in 2010 as part of the National Reassessment Program (NRP). He later learned that another employee received back pay for the time she was out of work pursuant to the NRP. He received a response on December 17, 2015, denying his request. The denial noted that the Union had filed a grievance but withdrew it March 28, 2012.
On December 16, 2015, Complainant contacted the EEO Counselor regarding his claim of discrimination. On January 22, 2016, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of sex (male), color (White), and disability when:
1. On or about December 17, 2015, his request for backpay was denied concerning being out of work as part of the National Reassessment Program (NRP) beginning in 2010.
2. On or about January 6, 2016, his request for insurance backpay concerning being placed out of work as part of the NRP in 2010 was denied.
The Agency dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a)(1) and 29 C.F.R. � 1614.107(a)(2). The Agency first dismissed the matter pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim for the matter involved Complainant's dissatisfaction with the grievance process. The Agency also dismissed the matter pursuant to 29 C.F.R. � 1614.107(a)(1) finding that the matter of back pay is part of the McConnell class action of which Complainant is a member. Finally, the Agency dismissed the matter pursuant to 29 C.F.R. � 1614.107(a)(2) for untimely EEO Counselor contact. The Agency noted that he was placed out of work in 2010, but did not raise his claim until December 2015, well beyond the 45 day time limit. This appeal followed.
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. 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.
In the instant matter, Complainant was out of work from 2010. He did not contact an EEO counselor until December 2015. Complainant states he decided to file an EEO complaint after he learned about another employee receiving back pay. However, the record shows that Complainant had engaged in a grievance in 2012 seeking back pay. As such, he was aware of the back pay issue years before contacting the EEO counselor. We find that Complainant's EEO counselor contact was untimely and he failed to provide sufficient reason to extend the time limits for contacting an EEO counselor. As such, we find that the Agency's dismissal was appropriate.
The Agency also dismissed the matter 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).
The Commission has held that an employee cannot use the EEO complaint process to lodge a collateral attack on another proceeding. See Wills v. Dep't. of Def., EEOC Request No. 05970596 (July 30, 1998); Kleinman v. U.S. Postal Serv., EEOC Request No. 05940585 (Sept. 22, 1994); Lingad v. U.S. Postal Serv., EEOC Request No. 05930106 (June 25, 1993). A review of the file shows that Complainant sought back pay through the grievance process which ceased in 2012. Complainant argued that the Union withdrew the matter without his consent. The proper forum for Complainant to raise challenges with respect to his entitlement to benefits awarded as part of a grievance settlement is within that process itself. The Commission's regulations do not convey it with the jurisdiction to how the Union processes the grievance.
CONCLUSION
Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED.
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
May 24, 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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