0120103523
02-04-2011
Phu G. Huynh, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Pacific Area), Agency.
Phu G. Huynh,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 0120103523
Agency No. 4F-945-0260-10
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated August 11, 2010, 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. Upon review, the Commission finds that Complainant's
complaint was properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(2),
for untimely EEO Counselor contact.
BACKGROUND
In his complaint, Complainant alleged that the Agency subjected
him to discrimination on the bases of race (Vietnamese)1, age (51),
and in reprisal for prior protected EEO activity under Title VII when
Complainant was issued a Notice of Removal on June 23, 2009, effective
July 22, 2009.
In its final decision, the Agency dismissed Complainant's complaint for
untimely EEO Counselor contact. The Agency found that Complainant failed
to initiate contact with an EEO Counselor within 45 days of the date of
the alleged discriminatory action, his removal from his position at the
Agency.
CONTENTIONS ON APPEAL
On appeal, Complainant contends that his initial June 24, 2010, contact
with an EEO Counselor was timely because it was within 45 days of the
arbitration decision on his removal, which was issued on June 15, 2010.
Complainant further contends that June 15, 2010, was the effective date
of his removal, because under the NALC-USPS Joint Resolution process,
once a grievance is filed, removal is deferred until a final decision
is made. Complainant offers documentation from two grievance actions,
one stemming from his removal and one stemming from a 14-day suspension
he received earlier, to support his position that the 45-day time limit
for initiating EEO Counselor contact should be extended. Complainant
also contends that he was not aware of the time limit for contacting an
EEO Counselor.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.107(a)(2) provides for the dismissal
of complaints where the complainant did not initiate contact with an
EEO Counselor within 45 days of the date of the matter alleged to be
discriminatory or, in the case of a personnel action, within 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 45-day time limit 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. McLouglin v. Dep't. of the Treasury,
EEOC Request No. 05A01093 (Apr. 24, 2003).
EEOC regulations provide that the agency or the Commission shall extend
the time limits when the individual shows that he was not notified of the
time limits and was not otherwise aware of them, that he did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence he was prevented
by circumstances beyond his control from contacting the Counselor
within the time limits, or for other reasons considered sufficient by
the agency or the Commission. Hathcock v. Dep't. of the Air Force.
Appeal No. 0120093324 (Jan. 22, 2010).
Where timeliness is an issue, an agency bears the burden of proof of
obtaining sufficient information to support a reasoned determination as to
whether that time limit was met. Guy v. Dep't. of Energy, EEOC Request
No, 05930703 (Jan. 4, 1994) (quoting Williams v. Dep't. of Defense,
EEOC Request No. 05920506 (Aug. 25, 1992). Further, the Agency has the
burden of providing evidence or proof to support any decision it makes
regarding the timeliness of a thing. See Ericson v. Dep't. of the Army,
EEOC Request No. 05920623 (Jan. 14, 1993).
The record discloses that the alleged discriminatory event occurred on
July 22, 2009, but Complainant did not initiate contact with an EEO
Counselor until June 24, 2010, which is beyond the 45-day limitation
period. As noted above, Complainant contends that his grievance
action tolled the effective date of his removal and, consequently,
the 45-day limitation period. Because of this, Complainant contends,
he had 45 days from June 15, 2010, the date of the arbitration decision,
to initiate EEO Counselor contact.
Complainant's contention that his grievance action tolled his time limit
for initiating EEO Counselor contact is without merit. The Commission
has consistently held that utilization of internal agency procedures,
union grievances, and other remedial processes do not toll the time
limit for contacting an EEO Counselor. See Greene v. U.S. Postal Serv.,
Appeal No. 0120074033 (Dec. 4, 2007); see Lao v. U.S. Postal Serv.,
Appeal No. 01975621 (May 6, 1998) (citing Kramer v. U.S. Postal Serv.,
Appeal No. 01954021 (Oct. 5, 1995).
In this case, the record shows that Complainant was aware of his removal
and the 45-day time limit to initiate EEO Counselor contact. It is
undisputed that Complainant received a Notice of Removal, stating that
he was to be removed from the Agency effective July 22, 2009. Further,
Complainant's prior EEO activity indicates that he was aware of the
45-day time limit to initiate EEO Counselor Contact. The Commission has
consistently held that a complainant who has engaged in prior EEO activity
is deemed aware of the time frames required for filing complaints in the
EEO process. Kader v. U.S. Postal Serv., Appeal No. 01974448 (Jun. 24,
1999) (citing Coffey v. Dep't. of the Navy, EEOC Request No. 05901006
(Nov. 16, 1990); Patrick v. U.S. Postal Serv., EEOC Request No. 05940633
(Nov. 10, 1994)).
The 45-day time limit for initiating EEO Counselor contact regarding
Complainant's Notice of Removal began to run not later then the Notice of
Removal's effective date of July 22, 2009. Complainant did not initiate
EEO Counselor contact until June 24, 2010, nearly 11 months after the
effective date of his removal. Complainant has presented no persuasive
evidence that would warrant an extension of the 45-day time limit to
initiate EEO Counselor contact. Thus, we find that the Agency properly
dismissed Complainant's complaint for untimely EEO Counselor contact.
CONCLUSION
In conclusion, we find that the Agency properly dismissed Complainant's
claim for untimely EEO Counselor contact. 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
February 4, 2011
Date
1 We note that the Commission considers "Vietnamese" to denote a national
origin rather than a race.
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01-2010-3523
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120103523