0120141737
10-03-2014
Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southeast Area), Agency.
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southeast Area),
Agency.
Appeal No. 0120141737
Agency No. 1G787001713
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated December 9, 2013, 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 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 Distribution Clerk at the Agency's GMF facility in Austin, Texas.
On November 16, 2014, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race/national origin (Mexican), sex (male), color, disability, age (48), and reprisal when, on April 9, 2013, he was issued a 7-Day Suspension, which was reduced to a letter of warning through the grievance process on July 12, 2013.
The record reflects that Complainant was issued the suspension on April 9, 2013, but refused to sign for it. Thereafter, the union filed a grievance on the matter and, in July 2013, informed Complainant that it was reduced to a letter of warning. Complainant then contacted an EEO counselor. The Agency dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely EEO Counselor contact, finding Complainant did not initiate EEO counseling until August 8, 2013, well beyond the 45-day limitation period from when the suspension was issued.
The instant appeal followed. In his appeal, Complainant says he refused to sign the letter of suspension on April 9, 2013 and that he did not file the grievance - "the union steward filed a grievance on my behalf." He states he became aware of the settlement on July 12, 2013, and as such, his EEO counselor contact is timely. He states he was not told about the EEO process.
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.
In this case, it is undisputed that Complainant was on notice about the proposed suspension as early as April 9, 2013, when he refused to sign for the notice. He also admits he knew on April 18, 2013, that a union steward filed a grievance on his behalf. Therefore, Complainant's
August 8, 2013 EEO counseling contact was well beyond the 45-day limitation period. The fact that Complainant did not sign for the suspension notice is not relevant to this determination as there is no doubt that he knew about it in April 2013. Moreover, the fact that a grievance was filed on the suspension is also not relevant. 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).
Complainant also asserts that he was not familiar with the relevant limitation period. However, the Agency has provided an affidavit from a manager who states that EEO posters are in place at the facility where Complainant is employed, and that the posters provide the appropriate information about time limits for contacting an EEO counselor. As such we find that Complainant was put on notice about the EEO time limits for contacting a counselor.
Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED.
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 (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 (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
October 3, 2014
__________________
Date
2
0120141737
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120141737