0120112041
02-23-2012
Rajinder Walia, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Northeast Area), Agency.
Rajinder Walia,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Northeast Area),
Agency.
Appeal No. 0120112041
Agency No. 4B-100-0162-10
DECISION
Complainant filed an appeal with this Commission from the Agency's
decision dated December 1, 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. For the
following reasons, the Agency’s final decision is AFFIRMED in part
and REVERSED in part.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Carrier at the Agency’s Cooper Station in New York, New York.
Complainant filed an EEO complaint dated November 6, 2010, alleging
that the Agency subjected him to discrimination on the basis of race
(Asian Indian) when:
1. On unspecified dates during Quarter 4 (October, November, December)
of 2009, Complainant was not paid for denied overtime; and,
2. On unspecified dates during Quarter 1 (January, February, March)
of 2010, Complainant was denied day off overtime.
The Agency dismissed Complainant’s complaint pursuant to 29 C.F.R. §
1614.107(a)(2), for untimely EEO Counselor contact. The Agency noted
Complainant did not make contact with the EEO office until September 22,
2010, more than 260 days (using December 31, 2009, in the light most
favorable to the Complainant) from the date of the incident described
in issue (1) and more than 170 days (using March 31, 2010, in the light
most favorable to the Complainant) from the date of the incident alleged
in issue (2). The Agency found that Complainant was aware of the time
limits for contacting an EEO Counselor and was not otherwise prevented
by circumstances beyond his control from requesting counseling within
the 45-day timeframe.
Additionally, the Agency noted Complainant had a prior EEO complaint
under Case No. 4B-100-0024-10, which was settled during mediation.
The Agency noted that in the present case, Complainant was alleging that
pursuant to the settlement agreement for Case No. 4B-100-0024-10, he was
to be paid for any overtime that was less than his coworkers as a result
of the settlement agreement. Thus, the Agency dismissed the claim that
the Agency failed to pay Complainant money due for lost overtime pursuant
to a prior settlement agreement pursuant to 29 C.F.R. § 1614.107(a)(8),
as a “spin-off” complaint.
On appeal, Complainant states that since July 2009, when Person A came to
this station as supervisor, he has been subjected to many instances of
unfair treatment. Complainant notes that since October and November of
2009, he has filled out Form 96 for overtime, on numerous occasions and
it was never given. He notes that his previous complaint was settled
during mediation; however, he never received payment for the overtime
he lost. Complainant alleges that the EEO Representative who handled
his mediation in the prior case was biased in favor of Person A.
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 (February 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.
The record reveals that Complainant filed a previous EEO complaint under
Agency No. 4B-100-0162-10 which was resolved in a February 19, 2010
settlement agreement. In the present complaint, Complainant alleges that
the Agency failed to pay him 20 hours of overtime he states he was due
as a result of the February 19, 2010 settlement agreement. Upon review,
we find issue (1) concerns a claim that the Agency breached the terms of
the February 19, 2010 settlement agreement. The record does not contain
sufficient information to adjudicate such a breach claim. There is no
indication in the record that the Agency has processed such a breach
of settlement claim. Therefore, we shall remand the matter so that the
Agency shall process Complainant's breach of settlement claim pursuant
With regard to issue (2), we find the Agency properly dismissed this
issue for untimely EEO Counselor contact. Specifically, we note that
the alleged incident occurred at the latest on March 31, 2010; however,
Complainant did not initiate contact with an EEO Counselor until September
22, 2010, which is beyond the applicable limitations period. On appeal,
Complainant has not offered adequate justification for his delay in
pursuing this matter.
CONCLUSION
The Agency’s final decision concerning Complainant's breach of
settlement claim is VACATED and the breach claim is REMANDED to the
Agency for further processing in accordance with the Order herein.
The Agency’s decision dismissing issue (2) is AFFIRMED.
ORDER
The Agency shall take the following actions:
1. The Agency shall refer Complainant's breach claim relating to the
February 19, 2010 settlement agreement, to the Agency’s EEO Director
for further processing in accordance with 29 C.F.R. § 1614.504.
2. Within 30 days from the date this decision becomes final, the Agency
shall issue a determination as to whether the Agency breached the February
19, 2010 settlement agreement. The Agency shall provide Complainant a
copy of the determination with appeal rights to the Commission.
3. A copy of the Agency’s determination regarding compliance with the
February 19, 2010 settlement agreement must be sent to the Compliance
Officer referenced herein.
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 (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 (T0610)
This decision affirms the Agency’s final decision/action in part, but it
also requires the Agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion of
your complaint which the Commission has affirmed and that portion of the
complaint which has been remanded for continued administrative processing.
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 your appeal with the Commission, until such time as the Agency
issues its final decision on your complaint. 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 23, 2012
__________________
Date
2
01-2011-2041
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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