Bell S.v.U.S. Postal Serv.

Equal Employment Opportunity Commission

Jan 29, 2020

EEOC Appeal No. 2020000691 (E.E.O.C. Jan. 29, 2020)

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

Bell S.,1
Complainant,

v.

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

Appeal No. 2020000691

Agency No. 4B-006-0038-19

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency's decision dated August 27, 2019, dismissing her 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. and the Age Discrimination in Employment
Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.

BACKGROUND

During the period at issue, Complainant worked as a Casual Mail Handler, PS-7, at the Agency’s
Annex Cantano in San Juan, Puerto Rico.

On April 10, 2019, Complainant initiated EEO Counselor contact. Informal efforts to resolve
her concerns were not successful.

On July 30, 2019, Complainant filed the instant formal complaint. Complainant claimed that she
was discriminated against based on sex and age when, since March 14, 2018, her request to have
her examination score reinstated for the position of Mail Handler Assistant was not granted.

1 This case has been randomly assigned a pseudonym which will replace Complainant’s name
when the decision is published to non-parties and the Commission’s website.
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On August 27, 2019, the Agency issued a final decision dismissing the complaint for untimely
EEO counselor contact, in accordance with EEOC Regulation 29 C.F.R. § 1614.107(a)(2). The
Agency specifically determined that Complainant’s contact of an EEO Counselor on April 10,
2019, regarding her March 14, 2018 request regarding her examination score, was well beyond
the relevant time regulations for timely EEO counselor contact. Additionally, the Agency found
that Complainant was or should have been aware of the time limits since an EEO poster was on
display in Complainant’s work facility. This appeal followed.

In her statement on appeal, Complainant contends that she was unaware of the time limitations
for contacting an EEO counselor regarding her concerns. Complainant further asserts that the
EEO poster referred to by the Agency in its final decision was posted in an inaccessible location,
and that she and her co-workers were unaware of its location until after Complainant received
the instant final decision. Specifically, Complainant stated she was unable to locate an EEO
poster in all the places where notices are typically placed at her work site. Instead, Complainant
indicates that she found an EEO poster in a hallway blocked by shelves along a wall.

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.

EEOC regulations provide that the agency or the Commission shall extend the time limits when
the individual shows that she was not notified of the time limits and was not otherwise aware of
them, that she did not know and reasonably should not have known that the discriminatory
matter or personnel action occurred, that despite due diligence she was prevented by
circumstances beyond her control from contacting the Counselor within the time limits, or for
other reasons considered sufficient by the agency or the Commission. 29 C.F.R. §
1614.105(a)(2).

On appeal, Complainant, a casual (temporary) employee of the Agency, asserts she was unaware
of the time limits for seeking EEO counseling and asks that any delay be excused. The record
contains a declaration of an EEO manager stating that:

EEO Poster 72 dated November 2018 is currently on display on all the lobbies
(where applicable) and employee bulleting (sic) boards in all postal facilities
within my Area.

We note that other than the presence of an EEO poster, the Agency does not claim that
Complainant received any other notice of the relevant time frames.

However, there is no evidence in the record establishing that the referenced poster was placed in
a conspicuous location.
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Complainant has not alleged that an EEO poster did not exist, but that it was not conspicuously
posted. On appeal, Complainant has submitted a photograph depicting the referenced EEO
poster in an inaccessible location and partially covered by a bookshelf. In addition, Complainant
credibly claims that prior to the issuance of the Agency’s final decision she had not seen the
EEO poster. The Agency has presented no evidence, aside from its assertion, to show that the
EEO poster was prominently displayed at Complainant’s work facility.

It is noted that the Commission has found that a showing by a complainant that EEO posters
were inaccessible or otherwise inadequate may be sufficient to support a claim that the individual
lacked knowledge of the limitation period. See Yashuk v. United States Postal Service, EEOC
Request No. 05890382 (June 2, 1989). We also have found that where, as in here, there is an
issue of timeliness, an “agency always bears the burden of obtaining sufficient information to
support a reasoned determination as to timeliness.” Williams v. Department of Defense, EEOC
Request No. 05920506 (August 25, 1992).

In light of the foregoing, we find that waiver of the applicable time limit is justified in this case
and find dismissal of Complainant's complaint for untimely EEO Counselor contact improper
because the Agency has failed to prove that Complainant had actual or constructive notice of the
time limit. 29 C.F.R. § 1614.604(c).

CONCLUSION

The Agency final decision dismissing the formal complaint is REVERSED. The formal
complaint is REMANDED to the Agency for further processing in accordance with the ORDER
below.

ORDER (E0618)
The Agency is ordered to process the remanded claim 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 was issued. 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 was issued, 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.
As provided in the statement entitled "Implementation of the Commission's Decision,” the
Agency must send to the Compliance Officer: 1) a copy of the Agency’s letter of
acknowledgment to Complainant, 2) a copy of the Agency’s notice that transmits the
investigative file and notice of rights, and 3) either a copy of the complainant’s request for a
hearing, a copy of complainant’s request for a FAD, or a statement from the agency that it did
not receive a response from complainant by the end of the election period.

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IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719)
Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission’s corrective
action is mandatory. Within seven (7) calendar days of the completion of each ordered
corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP)
supporting documents in the digital format required by the Commission, referencing the
compliance docket number under which compliance was being monitored. Once all compliance
is complete, the Agency shall submit via FedSEP a final compliance report in the digital format
required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must
contain supporting documentation when previously not uploaded, and the Agency must send a
copy of all submissions to the Complainant and his/her representative.
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.
Failure by an agency to either file a compliance report or implement any of the orders set forth in
this decision, without good cause shown, may result in the referral of this matter to the Office of
Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency.
STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0617)
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.
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A party shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405;
Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110),
at Chap. 9 § VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the
Director, Office of Federal Operations, Equal Employment Opportunity Commission.
Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC
20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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
agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal
(FedSEP). See 29 C.F.R. § 1614.403(g). 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may
request permission from the court to proceed with the civil action without paying these fees or
costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may
request the court to appoint an attorney for you. You must submit the requests for waiver of
court costs or appointment of an attorney directly to the court, not the Commission. The
court has the sole discretion to grant or deny these types of requests.
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Such requests do not alter the time limits for filing a civil action (please read the paragraph titled
Complainant’s Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:

______________________________ Carlton M. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

January 29, 2020
Date