0120161990
09-01-2016
Ricky S.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Ricky S.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Southern Area),
Agency.
Appeal No. 0120161990
Agency No. 4G000000116
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated May 24, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Data Collection Technician at the Agency's P&DF facility in Gulfport, Mississippi.
On May 6, 2016, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (African American), sex (male), and reprisal when, on November 7, 2014, the off-days for his bid position were changed by management from Thursdays and Fridays to Wednesdays and Thursdays. Complainant alleged that he was called into the office to sign a change of reporting time letter on January 7, 2015. He filed an out-of-schedule premium grievance under the collective bargaining agreement concerning the matter, which it appears was settled on November 6, 2015, at step 3 between the union and management for what Complainant believes was essentially unfavorable terms. However, on January 14, 2016, he learned that Labor Relations settled a similar out-of-schedule premium grievance involving a white female providing her with "100% of the compensation requested,"
while his grievance only resulted in "approximately 11% of what I was owed." On February 9, 2016, Complainant first contacted an EEO counselor about the matter.
The Agency dismissed the complaint, pursuant to 29 C.F.R. � 1614.107(a)(1), for failure to state a claim, and/or for untimely EEO counselor contact. The instant appeal followed.
ANALYSIS AND FINDINGS
Untimely EEO Counselor Contact
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. Department 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.
To the extent that Complainant is alleging that he was discriminated against when his off-days were changed in November 2014, or when his grievance on the matter was settled for unfavorable terms in November 2015, he did not contact an EEO counselor on the matter until February 9, 2016, well beyond the 45-day limitation period.
On appeal, Complainant seems to argue that he did not develop a reasonable suspicion of discrimination until he learned, on January 14, 2016, that a similar grievance brought by a white female employee was settled for significantly more favorable terms. We, however, are unconvinced by Complainant's assertion. Complainant is clear that he knew when he originally filed his grievance in early 2015 that "none of the white/male employees off days were changed . . . only my bid job was changed and we all signed the same change of reporting time letter." He also knew that he was dissatisfied with the results of that grievance by no later than November 6, 2015. These events were sufficient to cause a reasonable suspicion of discrimination that required him to seek EEO counseling at an earlier date and Complainant's claim is properly dismissed as untimely raised.
Failure to State a Claim
Moreover, to the extent that Complainant is alleging that the white female comparator received a more favorable grievance settlement than he did, the Commission has held that an employee cannot use the EEO complaint process to lodge a collateral attack on another proceeding. See Wills v. Department of Defense, EEOC Request No. 05970596 (July 30, 1998); Kleinman v. United States Postal Service, EEOC Request No. 05940585 (September 22, 1994); Lingad v. United States Postal Service, EEOC Request No. 05930106 (June 25, 1993). Despite Complainant's arguments to the contrary, such a claim squarely challenges a decision made within the grievance process and constitutes a collateral attack on decisions made in that process. Therefore, such a claim is appropriately dismissed.
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
September 1, 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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