Complainant,

v. 

Megan J. Brennan,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.

Appeal No. 0120150753

Agency No. 4J-481-0141-14

DECISION

Complainant filed a timely appeal with this Commission from the Agency's final decision dated November 12, 2014, 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 at a postal facility in Dearborn, Michigan.  He had worked there for over 12 years at the time of the events at issue.

On July 11, 2014, Complainant initiated EEO Counselor contact. Informal efforts to resolve his concerns were unsuccessful. On October 22, 2014, Complainant filed a formal complaint claiming he was subjected him to discrimination on the bases of race/national origin (Lebanese), religion (Islam), and in reprisal for prior protected activity when:


on March 5, 2014, he was told not to report to work until further notice.  On or around November 15, 2013, Complainant had complained to his postmaster about sexual harassment by his immediate supervisor.   During the subsequent management investigation into his sexual harassment claims, management directed him to undergo a psychiatric fitness-for-duty exam.  When he did not comply with this directive, he was told not to report to work.

On November 12, 2014, 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 reasoned that complainant did not request pre-complaint EEO counseling until July 11, 2014, well beyond 45-day limitation period from the date he was first told not to report to work. 

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 a personnel action, within forty-five (45) days of the effective date of the action. 

The record establishes that the alleged discriminatory event occurred on March 5, 2014, but that Complainant did not initiate contact with an EEO Counselor until July 11, 2014, more than forty-five days after the alleged discriminatory event.  

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. Ellis v. United States Postal Service, EEOC Request No. 01992093 (Nov. 29, 2000). 
On appeal, Complainant, through his attorney, contends that the Commission should extend the 45-day time limit. Complainant states he was unaware of the EEO complaint process, or the necessity for contacting an Agency EEO Counselor within 45-day of the alleged discriminatory event.  Complainant also contends that he attempted to pursue his rights in this matter right away. Specifically, Complainant states that on or about February 10, 2014, he filed a grievance with the National Rural Letter Carriers' Association regarding this incident. Complainant states that neither the union nor anyone from the Agency informed him of the EEO process. 

Complainant further contends that he hired an attorney on March 7, 2014, but that attorney died shortly thereafter.  Due to this unexpected death, Complainant was not sure what steps the attorney had taken, if any, and was unable to retrieve his case file.  Complainant then hired another attorney on April 8, 2014. Complainant's current attorney states that this attorney provided "ineffective counsel," and did nothing to inform Complainant of the EEO process.  Finally, on July 8, 2014, Complainant hired his current attorney, who on July 11, 2014, requested pre-complaint processing. Complainant argues that he clearly intended to pursue an action based on discrimination by his diligent and exhaustive efforts to preserve his rights. Complainant argues that circumstances outside of his control should warrant the Commission granting an extension of the 45-day time limit.

The record in this case contains an affidavit from an Agency employee who indicated that she has been the Officer-in-Charge at the Agency facility since December 2013, and that an EEO poster with the limitation period for timely contacting an EEO Counselor has been posted since she held that position.  We have long held that the proper posting of such a notice constitutes constructive notice of the 45-day limitation period for contacting an EEO counselor.

However, even finding Complainant had constructive notice of the relevant limitation period, we find adequate justification under the unique facts of this case to excuse Complainant's untimely counselor contact.  See 29 C.F. R. § 1614.604(c) (the time limits in 29 C.F.R. Part 1614 are subject to "waiver, estoppel and equitable tolling").  We note that Complainant hired an attorney within days of being told not to return to work, but that attorney unfortunately died shortly thereafter.  It was not immediately clear what steps that attorney had taken, if any, on Complainant's behalf.  At the same time, we also note that Complainant promptly sought the assistance of his union, who he represents did not advise him to seek EEO counseling, but instead filed a grievance.  It was not until Complainant hired his current attorney in early July 2014, that the attorney immediately requested EEO counseling for Complainant.  We find this sequence of events adequate justification for excusing the untimely request for counseling.

Therefore, the Agency's final decision to dismiss the formal complaint on the grounds of untimely EEO Counselor contact is REVERSED and the matter is REMANDED to the Agency for further processing in accordance with the following Order.

ORDER (E0610)

The Agency is ordered to process the remanded claims 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

April 21, 2015
__________________
Date



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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013




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0120150753