0120120907
06-21-2012
Baljit S. Sihota, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Pacific Area), Agency.
Baljit S. Sihota,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 0120120907
Agency No. 4F-956-0185-08
DECISION
Complainant filed a timely appeal with this Commission from a decision by the Agency dismissing his complaint of discrimination on the grounds of untimely EEO counselor contact.
BACKGROUND
At the time of the events at issue, Complainant was employed by the Agency as a laborer custodian at the Sacramento, California, Processing and Distribution Center.
On September 12, 2008, Complainant initiated EEO Counselor contact alleging he was discriminated against on the bases of sex (male), national origin (Indian), color (brown), religion (Punjabi Sikh), disability and age (45) when:
on August 16, 2008, he found out that two sisters were allowed to work at the same facility and one was the manager; whereas, on May 3, 2007, he was denied a bid assignment because it was at the same facility his wife manages.
The record reflects that the matter was resolved when the parties entered into a settlement agreement on November 12, 2008. The settlement agreement provided, in pertinent part, that the Agency agreed:
1. [Complainant] will be converted to an unassigned regular letter carrier with the seniority date of 3/29/97, effective date 12/7/08.
By letter to the Agency dated August 4, 2011, Complainant alleged that the Agency was in breach of the settlement agreement. Specifically, Complainant alleged that on March 23, 2011, an Agency representative entered into a settlement agreement with the union to change his agreed-upon letter carrier seniority date to March 4, 2007, "which was a clear breach" of the November 12, 2008 settlement agreement.
On November 8, 2011, the Agency issued a final decision finding that management later realized that the seniority provision of the settlement agreement violated Articles 12.5.B.10 and 41.2.G. of its Collective Bargaining Agreement (CBA). Therefore, the Agency determined that it was necessary to set aside the agreement and reinstate Complainant's underlying complaint from the point processing had ceased.
As a result, on December 6, 2011, the Agency issued Complainant a Notice of Right to File a formal complaint regarding the underlying matter that was the subject of his September 12, 2008 EEO contact. At that point, the Agency had reinstated Complainant's underlying matter from the point processing ceased. The record reflects that Complainant filed a formal complaint on December 22, 2011, on the old underlying matter.
On January 9, 2012, the Agency issued a final decision dismissing the instant complaint pursuant to 29 C.F.R. � 1614.107(a)(2), on the grounds of untimely EEO Counselor contact. The Agency determined that the alleged discriminatory event occurred on May 3, 2007, but he did not initiate EEO Counselor contact until September 12, 2008, which was beyond the 45-day limitation period.
The instant appeal was filed by Complainant without further comment.
ANALYSIS AND FINDINGS
In the instant case, the Agency conceded that it has breached the terms of the settlement agreement it had with Complainant concerning his seniority date once he was reassigned to the letter carrier craft because of a conflict with its collective bargaining agreement, and that it has reinstated the underlying matter that was resolved pursuant to this agreement.1 Therefore, it reinstated the processing of the underlying complaint and issued Complainant a notice of right to file a formal complaint, which Complainant did.
The Agency has now dismissed that complaint for untimely initial EEO counselor contact, reasoning that Complainant was denied a bid assignment to a facility his wife managed in May 2007, but did not initiate EEO counseling until September 2008, well beyond the 45-day limitation period.
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.
Based on an application of the reasonable suspicion standard, we find that the Agency erred in dismissing this complaint for untimely EEO counselor contact. While Complainant was aware that he was denied his bid reassignment in May 2007, he reasonably believed it was pursuant to an Agency policy that he could not work in the same facility as one managed by a family member, in this case his wife. Accordingly, he had no reason to suspect discrimination. However, in August 2008, Complainant learned that two sisters were allowed to work in the same facility even though one of them was a manager. At this point, Complainant reasonably suspected he had been subjected to disparate treatment and contacted an EEO counselor in September 2008, within the 45-day limitation period. We find this contact was timely made.
Accordingly, the Agency's January 9, 2012 final decision dismissing Complainant's December 22, 2011 complaint for untimely EEO counselor contact is REVERSED. The complaint is REMANDED to the Agency for further processing in accordance with this decision and the Order below.
ORDER (E0610)
The Agency is ordered to process the remanded complaint in accordance with 29 C.F.R. � 1614.108 et seq. The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision becomes final. The Agency shall issue to Complainant a copy of the investigative file and also shall notify Complainant of the appropriate rights within one hundred fifty (150) calendar days of the date this decision becomes final, unless the matter is otherwise resolved prior to that time. If the Complainant requests a final decision without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of Complainant's request.
A copy of the Agency's letter of acknowledgment to Complainant and a copy of the notice that transmits the investigative file and notice of rights must be sent to the Compliance Officer as referenced below.
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 (R0610)
This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. 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 filed your appeal with the Commission. 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. 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
June 21, 2012
__________________
Date
1 The Agency is admonished in the future to have appropriate Agency officials properly review settlement agreements prior to their execution, in order to avoid conflicts similar to this situation.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120120907
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120120907
6
0120120907