0120131023
05-24-2013
Neville S. Abraham, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Pacific Area), Agency.
Neville S. Abraham,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 0120131023
Agency No. 1F937000113
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated December 26, 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Supervisor Maintenance Operations at the Agency's P&DC facility in Fresno, California. On December 3, 2012,
Complainant filed a formal EEO complaint alleging that the Agency subjected him to discrimination on the bases of race (Asian), national origin (Sri Lankan/American), sex (male), religion (Catholic), color (Brown), age (69), and reprisal when: (1) on March 23, 2012, management changed his beginning tour time from 3:00 p.m. to 6:00 p.m.; and (2) on August 28, 2012, he learned that management did not abide by a previous EEO settlement to provide him with Six Sigma Training.
In its final decision, the Agency dismissed claim 1 because Complainant has previously raised the issue in an earlier EEO complaint, as well as for contacting an EEO counselor in an untimely manner; and indicated that it was addressing claim 2 separately as a breach of settlement agreement.
The instant appeal followed. In his appeal, Complainant requested that the instant matter be consolidated with EEOC Appeal No. 0120120303, issued on August 30, 2012, with a pending request to reconsider (EEOC Request No. 0520130085).
ANALYSIS AND FINDINGS
As to claim 1, Complainant raised the matter in an earlier EEO complaint (1F-937-0007-12). Complainant does not dispute that the claim raised is identical. Further, the record discloses that the alleged discriminatory event occurred on April 23, 2012, but Complainant did not initiate contact with an EEO Counselor until October 9, 2012, which is beyond the forty-five (45) day limitation period. On appeal, Complainant has presented no persuasive arguments or evidence warranting an extension of the time limit for initiating EEO Counselor contact.
Regarding claim 2, EEOC has already issued a decision in Appeal No. 0120120303, which dealt with claims that several settlement agreements had been breached by the Agency. The decision remanded the matter back to the Agency for a supplemental investigation on compliance with the terms of a February 2009 settlement agreement.
At this juncture, although a request for reconsideration of 0120120303 is pending, we decline to consolidate the instant matter with it. We find that the Agency properly found that Complainant was raising a new breach allegation with respect to claim 2 and accordingly, was processing it separately.
Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED.
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
May 24, 2013
__________________
Date
2
0120131023
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120131023