0120180016
12-15-2017
Julianna H.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Pacific Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Julianna H.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 0120180016
Agency No. 1F901013417
DECISION
Complainant timely appealed to the Equal Employment Opportunity Commission ("EEOC" or "the Commission") from the Agency's August 23, 2017, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Group Leader Custodial at the Agency's P&DC facility in Los Angeles, California.
On August 10, 2017, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of sex (female) and reprisal for prior protected EEO activity when:
1. She was passed over for promotion to the position of Supervisor, Maintenance Operations, on March 4, April 15, April 29, and May 13, 2017, for reporting sexual harassment in February 2015.2 Complainant alleges that after she reported the harassment, she was warned that she would never be promoted, and since then, she was passed over for promotion.
2. In February 2015, her manager said he would handle the situation when she reported the harassment to him, but the alleged harasser still shares the same hallways and parking areas as she does.
The Agency dismissed both claims for untimely contact with an EEO Counselor, pursuant to 29 C.F.R. � 1614.107(a)(2). The Agency also dismissed Claim 2 on the alternate grounds, that it failed to state a claim pursuant to 29 C.F.R. � 1614.107(a)(1).
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.
Here, according to the record, the latest of the alleged discriminatory non-selection in Claim 1 occurred on May 13, 2017, but Complainant did not contact an EEO Counselor until July 2, 2017, which is beyond the 45-day limitation period. We find Claim 2 is also untimely, because the alleged actions in Claim 1 and her manager's ongoing alleged failure to "handle the situation," starting in February 2015, should have triggered reasonable suspicion for Complainant long before July 2, 2017.
Where there is an issue of timeliness, "[a]n 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 Defense, EEOC Request No. 05920506 (Aug. 25, 1992). We find that the Agency met its burden, as the record contains sufficient evidence that Complainant was aware of the 45 day limitation period, and that reasonable suspicion for both claims existed over 45 days prior to her initial contact with an EEO counselor. The evidence includes a signed statement by the Agency's Labor Relations Specialist for the Los Angeles District, attesting that during the relevant time frame, "EEO Poster 72," was displayed in five break areas, as well as on the supervisors' office wall and the wall outside the Union office at the facility where Complainant worked. A copy of EEO Poster 72, also included in the record, provides instructions for pursuing an EEO complaint, including the deadlines for contacting an EEO counselor.
On appeal, Complainant does not dispute that the EEO posters were on display, or that reasonable suspicion of discrimination existed over 45 days prior to her making EEO contact. Complainant also does not claim to have been unaware of the 45 day limitation period. Instead, Complainant argues, without evidence that "Management intentionally changed dates to suit their bogus claim of untimely." She also appears to argue equitable estoppel by alleging that her manager caused the delay by telling her "not to speak to anyone" when she reported the harassment. The Commission has defined "equitable estoppel" as "the principle by which a party is precluded by his own acts, words, or silence from asserting a right to which he otherwise would be entitled against another who rightfully relied on the party's acts, words, or silence to his detriment." Jackson v. United States Postal Serv., EEOC Appeal No. 01931557 (Feb. 17, 1994). Nothing in the record indicates that the Agency engaged in misconduct by intentionally inducing Complainant's late EEO contact. To the contrary, the Agency demonstrated Complainant was aware of her EEO rights, yet failed to timely pursue her complaint.
Given that Complainant's entire complaint was untimely raised, we find it unnecessary to examine the Agency's alternate grounds for dismissing Claim 2.
CONCLUSION
Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED.
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.
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
December 15, 2017
__________________
Date
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.
2 Complainant alleged that she was "improperly approached" by the Supervisor, Maintenance Operations, on or around February 2, 2015. We note that Complainant identifies the year of the alleged sexual harassment incident and her reporting of it as occurring in February 2016 in the EEO counseling report, but provides February 2015 in her formal complaint. February 2015 is the date used in the Agency's final decision. For continuity, we will use 2015, and note that the year does not impact our finding on timeliness.
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