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

Equal Employment Opportunity Commission

Jul 3, 2018

0120181665 (E.E.O.C. Jul. 3, 2018)

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

Loren M.,1
Complainant,

v.

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

Appeal No. 0120181665

Agency No. 1F921001118

DECISION

Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or
Commission) from the Agency's decision dated March 28, 2018, dismissing his 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. For the following reasons, the
Commission REVERSES the Agency’s final decision.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a General Expeditor,
GS-7, at the Agency’s facility in San Bernardino, California. On February 26, 2018,
Complainant filed a formal complaint alleging that the Agency subjected him to discrimination
on the bases of race (African-American) and age (61) when:

In February 2017, Complainant’s request to be detailed to transportation was not granted.

The Agency dismissed Complainant’s complaint pursuant to 29 C.F.R. § 1614.107(a)(2), for
untimely EEO Counselor contact. The Agency stated that on January 15, 2017, Complainant
emailed the Manager of Transportation and Networks (MTN) requesting a detail to the

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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transportation department. The Agency stated that on February 17 and February 27, 2017, the
MTN requested additional information in order to consider Complainant’s request, and he did
not respond. The Agency noted Complainant initially contacted the EEO Counselor on
November 14, 2017. The Agency determined that more than 45 days elapsed between the date
of the event and the date of EEO contact. Further the Agency noted that the EEO Counselor’s
Report contained an affidavit indicating that an EEO poster is on display at the facility, thereby
imputing constructive knowledge of the time limit upon Complainant.

On appeal, Complainant argues he was unaware of 45-day time limit to file for counseling.
Additionally, Complainant states during the time from January 15, 2017, he was in
communication with MTN for training in transportation until November 12, 2017, when he
became aware that three junior employees (Hispanic) were chosen for the training.

ANALYSIS AND FINDINGS

EEOC Regulation 29 C.F.R. §1614.105(a)(1) provides that an aggrieved person must initiate
contact with an EEO 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. EEOC Regulation 29 C.F.R. §1614.105(a)(2) allows the agency or the Commission to
extend the time limit if the complainant can establish that Complainant was not aware of the time
limit, that Complainant did not know and reasonably should not have known that the
discriminatory matter or personnel action occurred, that despite due diligence Complainant was
prevented by circumstances beyond her control from contacting the EEO Counselor within the
time limit, or for other reasons considered sufficient by the Agency or Commission.

Complainant argues that he was not aware of the 45-day limitation period for initiating contact
with an EEO Counselor. However, an affidavit from a Manager of Distribution Operations at the
San Bernardino facility reveals that EEO Poster 72 (March 2012 edition) was on display on the
employee’s bulletin boards and information boards at Complainant’s facility which informed
employees of the applicable time frame for initiating EEO Counselor contact. Complainant does
not dispute the Agency’s contention that EEO Poster 72 was on display at his facility during the
relevant time. Therefore, we find Complainant’s contention that he was unaware of the time
limit does not constitute an acceptable reason for a delay in contacting the EEO Counselor. We
find Complainant had constructive notice of the time limit for contacting an EEO Counselor.

Regarding Complainant’s contention that he was not aware of the discriminatory nature of the
Agency’s action, we note that the Commission has adopted a “reasonable suspicion” standard (as
opposed to a “supportive facts” standard) to determine when the forty-five (45) day limitation
period is triggered. See Complainant 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.

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Complainant argues that he only developed awareness of the discriminatory action when on
November 12, 2017, three junior employees outside his protected classes were chosen for the
training detail. Upon review, we find there are no facts to show that Complainant should have
been aware that MTN’s request for more information and lack of immediate approval for the
detail was discriminatory in nature. Furthermore, Complainant claims he and MTN were in
communication from January 2017 through November 2017, about his detail request. Absent
any evidence to the contrary by the Agency, we find that Complainant was not reasonably aware
of the alleged discrimination concerning his requested detail transfer until November 12, 2017,
and that his November 14, 2017 EEO Counselor contact was therefore timely.

CONCLUSION

Accordingly, the Agency's final decision dismissing Complainant's complaint is REVERSED.
The complaint is REMANDED to the Agency for further processing in accordance with this
decision.

ORDER (E0618)
The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. § 1614.108.
The Agency shall acknowledge to the Complainant that it has received the remanded claims
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.
IMPLEMENTATION OF THE COMMISSION’S DECISION (K0618)
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).
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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 (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).

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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. 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

July 3, 2018
Date