Coralee H.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Pacific Area), Agency.

Equal Employment Opportunity Commission

Aug 29, 2019

2019003344 (E.E.O.C. Aug. 29, 2019)

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

Coralee H.,1
Complainant,

v.

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

Appeal No. 2019003344

Agency No. 4F900004519

DECISION

Complainant timely appealed with the Equal Employment Opportunity Commission (“EEOC” or
“Commission”) from the Agency's March 28, 2019, dismissal of 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

At the time of events giving rise to this complaint, Complainant worked as a Supervisor,
Customer Services, EAS-17 at the Compton Post Office, located in Compton, California.

On March 2, 2019, Complainant filed a Formal EEO Complaint alleging that the Agency
subjected her to discrimination on the bases of age (53) and reprisal (prior protected EEO
activity) when:

1. On various dates in 2016, her first level supervisor (“S1”) failed to properly code
her absences, resulting in improper payment,

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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2. In February 2017, S1 failed to respond to a grievance filed against Complainant
by a carrier who alleged Complainant yelled at her,

3. On or about February 22, 2018, S1 instructed her to report as the closing
Supervisor the next day despite her stated concerns for her safety, and,

4. On March 26, 2018, S1 defamed Complainant’s character and made false
statements about her work performance in response to a “Letter of Inquiry
Concerning Past/Current Employment” from the County of Los Angeles
Probation Department.

The Agency dismissed the complaint for untimely EEO Counselor contact, in accordance with
29 C.F.R. § 1614.107(a)(2).

The instant appeal followed.

ANALYSIS AND FINDINGS

In relevant part, 29 C.F.R. §1614.107(a)(2) states that an agency shall dismiss a complaint or a
portion of a complaint that fails to comply with the applicable time limits contained in
§1614.105. Under §1614.105(a)(1), an aggrieved person must initiate contact with an EEOC
Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of
a personnel action, within 45 days of the effective date of the action.

However, the Commission has adopted a "reasonable suspicion" standard (as opposed to a
"supportive facts" standard) to determine when the 45-day limitation period is triggered. See
Howard v. Dep't of the Navy, EEOC Request No. 05970852 (Feb. 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. See Complainant v.
United States Postal Serv., EEOC Appeal No. 0120120499 (Apr. 19, 2012).

Additionally, 29 C.F.R. §1614.105(a)(2) provides that the agency or the Commission may extend
the time limit if complainant establishes that he or she was not aware of the time limit, did not
know and reasonably should not have known that the discriminatory matter or personnel action
occurred, that despite due diligence he or she was prevented by circumstances beyond his or her
control from contacting the EEO Counselor within the lime limit, or for other reasons considered
sufficient by the agency or Commission.

An agency always bears the burden of obtaining sufficient information to support a reasoned
determination as to timeliness. See Guy v. Dep’t of Energy, EEOC Request No. 05930703 (Jan.
4, 1994) quoting Williams v. Dep’t of Def., EEOC Request No. 05920506 (Aug. 25, 1992). It is
well established that a complainant who has engaged in prior EEO activity is deemed aware of
the time frames required for filing complaints in the EEO procedure See Coffey v. Dep’t. of the
Navy, EEOC Request No. 05901006 (Nov. 16, 1990).
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The record discloses that Claim 4, the most recent alleged discriminatory event, occurred on
March 26, 2018, but Complainant did not initiate contact with an EEO Counselor until
November 18, 2018. Complainant does not dispute that she was aware of the 45 day limitation
period, and the record reveals that she had constructive knowledge of the time frames from her
prior EEO activity.

On appeal, Complainant offers no explanation for the delay in initiating EEO contact with
respect to Claims 1, 2 and 3. However, for Claim 4, Complainant contends that she did not
reasonably suspect discrimination until October 6, 2018, the day she formally requested (and was
granted) access to her personnel file. Before viewing the personnel file, which contained a copy
of S1’s responses and signature on the Los Angeles County employment inquiry, Complainant
states that she did not know S1 was aware that she applied for a position with Los Angeles
County. According to Complainant, in February 2018, the Postmaster at the time notified her that
Los Angeles County contacted her and that she had given Complainant “a very good
employment recommendation.” If reasonable suspicion did not exist until October 6, 2018, the
last day for Complainant to timely initiate EEO contact would have been November 20, 2018,
making her initial EEO contact date of November 18, 2018 timely.

We find that reasonable suspicion arose on or shortly after April 9, 2018, when Complainant
received notice from Los Angeles County that her application for the position of Detention
Services Officer (“DSO”) would not be considered because she had been “disqualified and are
not eligible for further consideration because of employment.” The discrepancy between this
explanation and the former PM’s alleged account to Complainant that she provided a positive
recommendation in February 2018, along with S1’s promotion to PM in March 2018, is
sufficient to give rise to reasonable suspicion. By Complainant’s own account, in Claims 1, 2,
and 3, she already experienced discriminatory actions at the hands of S1. She also alleges that
during the relevant time frame, S1 was aware of her prior EEO activity and made references to
her age and retirement. Complainant also developed her opinion that S1 lacked integrity no later
than March 2017, when he was allegedly “walked out” for “hiding” (not delivering or reporting)
mail, and did not return to work at the Compton Post Office until February 2018.

CONCLUSION

Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED.

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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. 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 (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.
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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. 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

August 29, 2019
Date