0120142447
02-09-2016
Orlando O.,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
Orlando O.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Southwest Area),
Agency.
Appeal No. 0120142447
Hearing No. 510-2013-00078X
Agency No. 4G335003612
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated June 5, 2014, 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 Letter Carrier at the Agency's Gulfwinds Station facility in St. Petersburg, Florida. On January 17, 2012, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the basis of reprisal for prior protected EEO activity under Section 501 of the Rehabilitation Act of 1973 when:
1. On or about November 1, 2011, Complainant's former Acting Supervisor did not return Complainant's medical records.
The Agency dismissed the claim for untimely EEO Counselor contact, finding that the alleged discriminatory act occurred in 2008 or 2009 but that Complainant did not initiate contact with an EEO Counselor until December 9, 2011. Complainant appealed that dismissal and in a Decision dated August 3, 2012, this Commission reversed the dismissal and found Complainant's Counselor contact to have been timely. See EEOC Appeal No. 0120121511. The Commission remanded the claim to the Agency for an investigation and an adjudication on the merits. Following such an investigation, Complainant requested a hearing before an EEOC Administrative Judge (AJ). On January 17, 2013, the Agency filed motion for a decision without a hearing with the AJ, which Complainant opposed2. On May 30, 2014, the AJ granted the Agency's motion and issued a Decision without a hearing. Specifically, the AJ dismissed the complaint, finding that Complainant's claim was barred by the doctrine of latches. The Agency adopted the AJ's Decision in its June 5, 2014 Final Order, from which Complainant appeals.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of discrimination 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 addition, the Commission has held that complainants must act with due diligence in the pursuit of their claims or the doctrine of latches may be applied. The doctrine of latches is an equitable remedy under which an individual's failure to diligently pursue his actions could bar his/her claim. See O'Dell v. Department of Health and Human Services, EEOC Request No. 05901130 (December 27, 1990). The AJ found that Complainant should have contacted an EEO Counselor "no later than October 8, 2010 i.e. 45 days from August 24, 2010 when he learned that [an Acting Supervisor (AS)] had the documents, especially given that the Complainant was represented by Counsel at the hearing." Because Complainant did not contact a Counselor until December 9, 2011, "approximately one year and three months from the time he was aware that [AS] kept a copy of his records," the AJ found that the doctrine of latches applied and dismissed the complaint.
We note, however, that in our previous decision we reversed the Agency's dismissal of Complainant's complaint for untimely EEO Counselor contact. See EEOC Appeal No. 0120121511. In that Decision we explicitly found that "while the medical records at issue may have been in the possession of [AS] since 2008 or 2009, this factor does not affect the forty-five (45) day limitation period in this matter. Instead, this limitation was triggered when on or about November 1, 2011, [AS] refused to return his medical files when told to do so by the Agency. Therefore, Complainant's EEO Counselor contact on December 9, 2011 was timely". Id. If the Agency believed that it had evidence to contradict that finding, then the appropriate course of action would have been to request reconsideration of the Commission's previous decision. It did not do so.
Under the "law of the case" doctrine, legal or factual determinations once rendered are generally binding in subsequent proceedings in the same case. Plunkett v. U.S. Postal Service, EEOC Request No. 05920288 (May 14, 1992). Consequently, the Commission's determination that Complainant's duty to initiate his complaint was not triggered until "on or about November 1, 2011" and that his Counselor contact was not untimely is binding on the parties. We find, therefore, that the AJ erroneously dismissed Complainant's complaint. See Bernerth v. U.S. Postal Service, EEOC Appeal No. 0120120235 (March 1, 2012)(AJ erroneously dismissed complaint for untimely EEO Counselor contact where Commission's previous decision found that agency did not establish complainant had actual or constructive knowledge of applicable time limits); Billingsley v. Dep't of Veterans Affairs, EEOC Appeal No. 01956856 (September 24, 1996) (agency erroneously dismissed claim as untimely filed where Commission's previous decision found that agency failed to submit evidence that complainant received notice of final interview).
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we VACATE the final order and REMAND the claim for further processing in according with this decision and the Order below.
ORDER
The Agency shall submit a request for a hearing to the Hearings Unit of the EEOC's Miami District Office within fifteen (15) calendar days of the date this decision becomes final. The Agency should request that a different AJ than the AJ who issued the May 2014 Decision in this case handle the hearing. The Agency is directed to also submit a copy of the complaint file to the EEOC Hearings Unit within fifteen (15) calendar days of the date this decision becomes final. The Agency shall provide written notification to the Compliance Officer at the address set forth below that the request and complaint file have been transmitted to the Hearings Unit.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 (R0610)
This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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. 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
February 9, 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 date of Complainant's opposition motion is not part of the record.
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