Jayna A.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency.Download PDFEqual Employment Opportunity CommissionNov 29, 20182019000179 (E.E.O.C. Nov. 29, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Jayna A.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 2019000179 Agency No. 4G760003718 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated July 23, 2018, 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 Rural Carrier Assistant for the Agency in Roanoke, Texas. On March 21, 2018, Complainant initiated EEO Counselor contact. Informal efforts at resolution were not successful. On June 23, 2018, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination based on race when: 1. On May 23, 2011, she was terminated for falsification of her employment application. 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. 2019000179 2 2. On August 29, 2014, she was not hired for the position of Rural Carrier Assistant, at the Keller, Texas Post Office. 3. On December 19, 2017, she was not hired for the position of Assistant Rural Carrier at the Roanoke, Texas Post Office. 4. On January 23, 2018, she was not hired for the positon of Assistant Rural Carrier at the Roanoke, Texas Post Office. In its July 23, 2018 final decision, the Agency dismissed the formal complaint pursuant to EEOC Regulation 29 C.F.R. § 1614.107(a)(2), for failing to initiate contact with an EEO counselor within the applicable 45-day time period established by EEOC regulations. This appeal followed. ANALYSIS AND FINDINGS In relevant part, 29 C.F.R. § 1614.107(a)(2) provides that the agency shall dismiss a complaint or a portion of a complaint that fails to comply with the applicable time limits contained in §1614.105. 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 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. It is undisputed that claims 1 -3, which involve discrete personnel decisions, occurred well beyond the 45-day limitation period and, in some instances, years before Complainant initiated EEO counseling contact. Even the most recent alleged discriminatory event (claim 4) occurred on January 23, 2018, but the record does not establish that Complainant initiated contact with an EEO Counselor until March 21, 2018, which is beyond the forty-five (45) day limitation period. On appeal, Complainant has presented no persuasive arguments or evidence warranting an extension of the time limit for initiating EEO counselor contact. A complainant satisfies the requirement of counselor contact by contacting an agency official “logically connected” with the EEO process, even if that official is not an EEO Counselor, and by exhibiting an intent to begin the EEO process. See Cristantiello v. Army EEOC Appeal No. 01992817 (Dec. 19, 2000), Cox v. HUD, EEOC Request No. 05980083 (July 30, 1998); Allen v. United States Postal Serv., EEOC Request No. 05950933 (July 9, 1996); Jones v. Dep't of the Army, EEOC Request No. 05900435 (Sept. 7, 1990). Here, Complainant represents in her statement on appeal that she contacted a legal aid attorney on February 6, 2018, who advised her that she was still within the 45-day filing window. In that regard, Complainant indicates that she “took his advice and call[ed] the [Agency’s] intake hotline within the 45 days…” and left a request to receive a packet for EEO counseling. She 2019000179 3 claims she still has the envelopes the EEO packet came in to further support her contention. Complainant has failed, however, to provide the Commission with (a) copies of the envelopes containing the EEO packet, (b) any pertinent telephone records, or (c) any other documentation indicating the telephone number she called, or the date and time of her call to the Agency’s intake line. See Andrews v. Department of the Treasury, EEOC Appeal No. 0120161454 (June 28, 2016). Moreover, we find that Complainant’s contact with a legal aid attorney outside of the Agency, is not logically connected with the EEO process as discussed above. In addition, Complainant provides to the Commission on appeal, copies of email correspondence to an Agency official dated January 24, 2018, inquiring about the reasons why she was not selected for the Assistant Rural Carrier position. However, the emails provided by Complainant do not indicate her intention to initiate the EEO process. In sum, we find no evidence to support Complainant’s contention that she requested EEO counseling prior to her untimely contact in March 2018. As such, the Agency properly dismissed her complaint as untimely raised. CONCLUSION The Agency's final decision dismissing formal complaint is AFFIRMED for the reasons discussed above. 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 2019000179 4 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. 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 November 29, 2018 Date Copy with citationCopy as parenthetical citation