0120113310
10-19-2012
Randall Davis, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Great Lakes Area), Agency.
Randall Davis,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.
Appeal No. 0120113310
Agency No. 4J-630-0077-11
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated May 25, 2011, 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.
BACKGROUND
During the period at issue, Complainant worked as a Letter Carrier at the Agency's North County Branch in St. Louis, Missouri.
On March 6, 2011, Complainant initiated EEO Counselor contact. Informal efforts to resolve his concerns were unsuccessful.
On May 14, 2011, Complainant filed the instant formal complaint alleging that the Agency subjected him to discrimination on the bases of race, sex, and color when:
1. on January 13, 2010, he was placed in an off duty status; and
2. on February 16, 2010, he was issued a Notice of Removal for Conduct Unbecoming a Postal Employee/Failure to Protect the Mail/Failure to Perform Your Duties in a Satisfactory Manner.
In its May 25, 2011 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). The Agency determined that the alleged discriminatory events occurred on January 13, 2010 and February 16, 2010, but that Complainant did not initiate EEO Counselor contact until March 6, 2011, which the Agency found to be beyond the 45-day limitation period. The Agency also indicated that because EEO posters with timeframes were on display in Complainant's workplace, he was, or should have been familiar with the 45-day limitation period.
The Agency also dismissed the formal complaint on the alternative grounds for failure to state a claim, pursuant to 29 C.F.R. � 1614.107(a)(1). The Agency found that the formal complaint is a collateral attack on the negotiated grievance process. Specifically, the Agency stated that Complainant should have raised his allegations through the negotiated grievance process, not through the EEO process.
CONTENTIONS ON APPEAL
On appeal, Complainant argues that because of his race, there was "an immediate 'rush to judgment' by the Postal Inspectors to accept the complaint and pursue the charges against me. The Postal Inspectors then proceeded to create a biased and intimidating process that was ultimately used to ensure my termination."
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. 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.
EEOC Regulations provide that the Agency or the Commission shall extend the time limits when the individual shows that he was not notified of the time limits and was not otherwise aware of them, that he did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence he was prevented by circumstances beyond his control from contacting the Counselor within the time limits, or for other reasons considered sufficient by the Agency or the Commission.
The record reflects that the discriminatory events occurred on January 13, 2010 and February 16, 2010 but Complainant did not initiate contact with an EEO Counselor until March 6, 2011, beyond the 45-day limitation period. Complainant had or should have had a reasonable suspicion of discrimination more than 45 days prior to his initial contact with an EEO Counselor.
We note that Complainant, on appeal, did not present persuasive arguments or evidence warranting an extension of the time limit for initiating EEO Counselor contact. See 29 C.F.R. � 1614.604(c). Therefore, we find that the Agency properly dismissed claims 1 and 2 on the grounds of untimely EEO Counselor contact.
The Agency's final decision dismissing Complainant's formal complaint is AFFIRMED.
Because we affirm the Agency dismissal for the reason stated herein, we will not address alternative dismissal grounds.
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 19, 2012
__________________
Date
2
0120113310
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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