0120160796
03-18-2016
Sidney S.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Capital Metro Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Sidney S.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Capital Metro Area),
Agency.
Appeal No. 0120160796
Agency No. 4K-200-0127-15
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated December 21, 2015, dismissing a formal 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
During the period at issue, Complainant worked as a Manager, Customer Services at an Agency facility in Washington D.C.
On August 22, 2015, Complainant initiated EEO Counselor contact. Informal efforts to resolve his issues were unsuccessful.
On November 24, 2015, Complainant filed the instant formal complaint. Therein, Complainant claimed that the Agency subjected him to discrimination on the bases of race, sex, color, age, and in reprisal for prior protected activity when:
on November 13, 2014, he was placed on Emergency Placement in an off-duty status, and management refused to meet with him to discuss this matter.
The record reflects that Complainant alleged that on November 13, 2014, he was placed on Emergency Placement based on false allegations by his ex-wife. Complainant had asserted that his ex-wife had claimed that he attacked her. Complainant further alleged that on August 19, 2015, when he was acquitted of all charges, the Acting Labor Relations Manager refused to meet with him regarding his concerns.
In its December 21, 2014 final decision, the Agency dismissed the formal complaint on the grounds of untimely EEO Counselor contact, pursuant to 29 C.F.R. � 1614.107(a)(2). Specifically, the Agency determined that Complainant initiated EEO Counselor contact on August 22, 2015, which the Agency found to be more than forty-five days after the alleged discriminatory event occurred. The Agency further stated that Complainant was familiar with the 45-day limitation period because he had engaged in prior protected activity.
Complainant, on appeal, argues that his August 22, 2015 EEO contact was timely. Specifically, Complainant states that his pre-EEO complaint documentation that was filed was not for being placed on an Emergency Placement in November 2014 but "instead it was filed after the failure to meet happened, after my charges were acquitted on August 19, 2015. The violation was that we met after every hearing to give the Manager of Labor Relations ([Manager]) and the inspection service an update on my ex-wife and my criminal charges as agreed to upon my return to duty."
Further, Complainant states that after he was acquitted of all charges on August 20, 2015, the Manager refused to meet with him "to discuss the issue of my ex-wife's case as previously stated they said they 'could not do anything to her until my charges were officially dropped' after she attacked me and another postal employee on November 10, 2014."
The instant appeal followed.
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 personnel action, within forty-five (45) days of the effective date of the action.
Despite Complainant's assertions to the contrary, a fair reading of the record reflects that the alleged discriminatory event occurred on November 13, 2014. However, Complainant did not initiate contact with an EEO Counselor until August 22, 2015, well beyond the 45-day limitation period. Complainant had or should have had a reasonable suspicion of discrimination regarding his claim more than 45 days prior to his initial contact with an EEO Counselor. We determine that, on appeal, Complainant did not present persuasive arguments or evidence warranting an extension of the time limit for initiating EEO Counselor contact, and that the purported Agency failure to discuss the situation was merely an expansion of the precipitating event in November 2014. See 29 C.F.R. � 1614.604(c). The Agency properly dismissed the instant formal complaint on the grounds of untimely EEO Counselor contact.
The Agency's final decision dismissing Complainant's formal complaint for the reason stated herein is AFFIRMED.
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 (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
March 18, 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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