0120182269
09-21-2018
Roscoe P,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Headquarters), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Roscoe P,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Headquarters),
Agency.
Appeal No. 0120182269
Agency No. 66000001118
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated May 29, 2018, 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 Postal Inspector, ISLE 13-9, at the Agency's U.S. Postal Inspection Service, Denver Division Headquarters facility in Denver, Colorado.
On April 13, 2018, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of national origin (Hispanic), sex (male and reverse LGBT), age, and reprisal for prior protected EEO activity when (1) on dates in 2016 and 2017, Complainant's Team Lead asked Complainant when he planned on retiring and stated that Complainant could perhaps parlay his knowledge of scuba diving into a lucrative career after retirement; (2) on an unspecified date, Complainant's Team Lead instructed Complainant to inform her immediately if he were contacted by an EEO investigator and that Complainant could not interact with the EEO investigator until the Team Lead gave Complainant permission to do so; (3) in August 2017, Complainant reported to the Assistant Inspector in Charge that Complainant felt threatened by the Team Lead but the Assistant Inspector in Charge failed to take appropriate action; (4) on or about November 17, 2017, Complainant was issued a Proposed Letter of Warning in Lieu of Time-Off Suspension which was subsequently upheld via a Letter of Decision dated December 22, 2017; and in December 2017, Complainant received a lower than earned end of year evaluation.2 Complainant specifically alleged that the dates of discrimination and/or retaliation were November 14, 2016; November 21, 2016; March 9, 2017; March 31, 2017; April 11, 2017; April 12, 2017; July 11, 2017; July 26, 2017; August 25, 2017; September 27, 2017; October 1, 2017; October 5, 2017; November 15, 2017; November 17, 2017; December 22, 2017; and February 21, 2018.
The Agency dismissed the complaint, pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely EEO Counselor contact. In so doing, the Agency noted that, although Complainant alleged that the last date of discrimination was February 21, 2018, this was the date that his administrative appeal of the Letter of Warning was denied, as opposed to an alleged discriminatory act. The Agency found the issuance of the Letter of Warning in Lieu of a Time-Off Suspension and being given a lower than earned year-end review were discrete acts which occurred on specific dates and had an instant effect on a term or condition of Complainant's employment. Thus, the Agency reasoned Complainants request for pre-complaint counseling was at least fifty-nine (59) days after the latest alleged discriminatory act and was, therefore, untimely.
The instant appeal followed. On appeal, Complainant asserts that he attempted to resolve the matter through the administrative appeals process and it was not until he had exhausted all of those options that he became aware that he had been discriminated against by the Agency. He further asserts that the effective date of the administrative action was the date of the denial of his appeal, February 21, 2018. Alternatively, he asserts that his request for pre-complaint counseling was 14 days late, which is a minimal amount of time and should not be weighed against him.
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 record discloses that the last alleged discriminatory event occurred on December 22, 2017, but Complainant did not initiate contact with an EEO Counselor until April 13, 2018, which is well beyond the forty-five (45) day limitation period. Complainant utilized other procedures during the relevant time period. The Commission has consistently held that the utilization of agency procedures, union grievances, and other remedial processes does not toll the time limit for contacting an EEO Counselor. See Ellis v. United States Postal Service, EEOC Appeal No. 01992093 (November 29, 2000). Additionally, the Commission has consistently held that a complainant must act with due diligence in the pursuit of his claim or the doctrine of laches may apply. See Becker v. United States Postal Service, EEOC Appeal No. 01A45028 (November 18, 2004) (finding that the doctrine of laches applied when complainant waited over two years from the date of the alleged discriminatory events before contacting an EEO Counselor); O'Dell v. Department of Health and Human Service, EEOC Request No. 05901130 (December 27, 1990). The doctrine of laches is an equitable remedy under which an individual's failure to pursue diligently his course of action could bar his claim.
Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. 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. Complainant's request 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 21, 2018
__________________
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 Complainant also alleged discrimination on the basis of reprisal for whistleblower activities, which is not covered by Title VII, as amended, 42 U.S.C. � 2000e et seq. and does not fall under the jurisdiction of the EEOC.
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