Edward L. Braxton, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Capital Metro Area), Agency. Appeal No. 0120102410 Hearing No. 430-2009-00114X Agency No. 1K234001108 DECISION Complainant filed a timely appeal with this Commission from the Agency's decision (FAD) dated April 2, 2010, concerning his equal employment opportunity (EEO) complaint alleging 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. The Commission deems the appeal timely and accepts it pursuant to 29 C.F.R. § 1614.405(a). For the following reasons the Commission VACATES and REMANDS the case to the Agency. BACKGROUND In his complaint, Complainant alleged that the Agency subjected him to discrimination on the basis of race (Black) when: 1. From November 8, 2007, through February 28, 2008, Complainant was denied equal access to overtime opportunities; 2. On June 15, 2008, management forced Complainant to unload incoming trucks without assistance; 3. On July 1, 2008, Complainant was issued a Letter of Warning (LOW); 4. On July 1 & 2, 2008, Complainant's name was removed from the holiday schedule for overtime; 5. On July 3, 2008, Complainant's leave request for July 6 through 15, 2008, was denied; and 6. On August 3, 2008, Complainant was displaced from his bid assignment. Complainant initially contacted an EEO Counselor on December 25, 2007 with regard to claim 1, and filed a Formal Complaint on April 7, 2008. The Agency dismissed the claim, Complainant appealed, and the Commission reversed and remanded the claim for an investigation. See Braxton v. United States Postal Service, EEOC No. 0120082635 (August 20, 2008). Upon remand, Complainant sought to amend his complaint by adding the remaining claims 2 through 6. The Agency, however, determined that although these claims were like or related to his complaint, they were untimely pursuant to 29 C.F.R. §§ 1614.107(a)(2) and 105 and dismissed them without an investigation. Following an investigation of claim 1, Complainant timely requested a hearing but subsequently withdrew his request. Consequently, the Agency issued a final decision pursuant to 29 C.F.R. § 1614.110(b). The decision concluded that Complainant failed to establish a prima facie case of discrimination because he failed to identify an otherwise similarly situated employee outside of his protected basis who was treated differently. On appeal, Complainant argues that our prior decision ordered the Agency to investigate all the claims. Complainant further argues that the Agency misled the Administrative Judge (AJ) but he also admits that he wrote to the AJ requesting to withdraw his hearing request. Finally, Complainant reiterates the merits of his complaint regarding claim 1. The Agency requests that we affirm the FAD. ANALYSIS AND FINDINGS We note initially that, contrary to Complainant's argument on appeal, our prior decision only ordered the Agency to investigate claim 1, not the additional claims. See Braxton, EEOC No. 0120082635. Indeed, at the time of our prior decision, Complainant had not yet brought up the additional claims and so our decision did not address them. We nevertheless agree that such claims should be investigated. The regulation at 29 C.F.R. § 1614.107(a)(2) says that an agency shall dismiss a complaint that fails to comply with the applicable time limits contained in § 105. That section states that an aggrieved person must contact an EEO Counselor within 45 days of the alleged discriminatory action. The Agency determined that claims 2 through 6 were like or related to claim 1, but should be dismissed because the events occurred between June 15 and August 3, 2008, and Complainant did not contact an EEO Counselor until September 25, 2008, which is beyond the 45-day limit. We note, however, that the 45-day limit only applies to Counselor contact, it does not apply to subsequent attempts to amend a complaint. See generally § 1614. Pursuant to § 1614.106(d), a complainant may seek to amend a complaint at any time prior to the conclusion of the investigation. That section makes no mention of any time limit. Furthermore, as the Agency noted in its November 18, 2008 decision initially dismissing the claims, when amending a complaint "there is no requirement that the complainant seek or receive counseling on these new claims." Since there is no requirement to seek or receive counseling, there is also no requirement to adhere to the 45-day time period for seeing a Counselor. We therefore find that the Agency erred in dismissing claims 2 through 6 and we VACATE the FAD and REMAND the claims for processing in accordance with the Order set forth below. ORDER The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. § 1614.108. The Agency shall acknowledge to the Complainant that it has received the remanded claim 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 October 29, 2010 __________________ Date 2 0120102410 U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 5 0120102410