[Redacted], Ardelia I., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Western Area), Agency.

Equal Employment Opportunity Commission

Feb 2, 2021

Appeal No. 2021000559 (E.E.O.C. Feb. 2, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Ardelia I.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Western Area), Agency. Appeal No. 2021000559 Agency No. 1E-981-0019-20 DECISION The Equal Employment Opportunity Commission (EEOC or Commission) accepts Complainant’s appeal, pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s decision dated September 2, 2020, dismissing her complaint of unlawful employment discrimination alleging a 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 Distribution Clerk, Level 6, at the Agency’s Seattle South DDC facility in Kent, Washington. On August 18, 2020, Complainant filed a formal EEO complaint alleging that the Agency discriminated against her based on race (Asian) when, on February 20, 2020, the Lead Clerk approached Complainant with an aggressive tone and stated he was no longer giving Complainant a break/relief during her shift. On September 2, 2020, the Agency issued a final decision. Therein, the Agency dismissed the formal complaint for untimely EEO Counselor contact, pursuant to 29 C.F.R. § 1614.107(a)(2). The Agency determined that Complainant’s claim arose out of an incident that occurred on February 20, 2020, but that Complainant’s initial EEO counselor contact was not until April 29, 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. 2021000559 2 2020. The Agency found Complainant’s EEO Counselor contact to be beyond the 45-day limitation period. Additionally, the Agency dismissed the formal complaint on the alternative grounds of failure to state a claim. The instant appeal followed. On appeal, Complainant, through counsel, argues that she contacted someone logically connected to the EEO office by contacting the Commission on April 2, 2020, which makes her contact timely. She states that when she found out that the Commission was not the proper office to contact, she realized she needed legal counsel. Complainant avers that, once she had legal counsel, she made contact with the Agency’s EEO Counselor on April 29, 2020. Complainant also argues that the Agency inappropriately analyzed the claim on its merits when dismissing the formal complaint on the alternative grounds of failure to state a claim. 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 personnel action, within forty-five (45) days of the effective date of the action. Complainant does not dispute that she did not make contact with the Agency to seek EEO counseling until April 29, 2020, more than 45 days after the event at issue. However, she argues that the prior to that date, on April 2, 2020, she sent an email about her claim to the Commission, which she argues was an office logically connected to the EEO complaint process and was, therefore, timely. Complainant provides a copy of the email response from the Commission to her inquiry, dated April 2, 2020. We note, however, that the Commission’s April 2, 2020 response explicitly stated that Complainant needed to contact her Agency’s EEO Counselor, followed by the Agency’s EEO telephone number. That telephone number directs callers to an e-file page to begin the process, and provides a reminder of the 45-day deadline. We have consistently held that “a complainant may satisfy the criterion of Counselor contact by initiating [contact with] an agency official logically connected with the EEO process, even if that official is not an EEO Counselor.” Floyd v. National Guard Bureau, EEOC request No. 05890086 (June 22, 1989). Complainant’s 45 days tolled on April 5, 2020, and she was advised prior to that time, on April 2, 2020, of precisely how to contact her Agency’s EEO office. While Complainant states that she then realized she needed legal counsel, she was advised of the precise number to call that would guide her on how to e-file her complaint, and the amount of time she had. Complainant does not provide any reason as to why she did not use the direct contact information provided to her so that she could timely contact the Agency’s EEO counselor. Instead, Complainant allowed the 45 days to toll without making EEO Counselor contact. 2021000559 3 We therefore find no justification has been provided for extending the 45-day limitation period and affirm the Agency’s dismissal of the complaint because Complainant’s EEO Counselor contact was untimely made. Because we affirm the Agency’s dismissal for the reason discussed above, we will not address alternative dismissal grounds. CONCLUSION The Agency’s final decision, dismissing the instant formal complaint for untimely EEO Counselor contact is AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. 2021000559 4 An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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 February 2, 2021 Date