[Redacted], Bernardo C., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency.

Equal Employment Opportunity Commission

Aug 25, 2021

Appeal No. 2021002625 (E.E.O.C. Aug. 25, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Bernardo C.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 2021002625 Agency No. 4G-770-0017-21 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated March 15, 2021, dismissing his complaint alleging 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 Laborer Custodian, 04, at the Agency’s Rich Hill Station in Houston, Texas. Complainant received his Notice of Right to File on February 4, 2021. In February 2021, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination, harassment, and hostile work environment on the basis of reprisal for prior protected EEO activity when: 1. On October 15, 2020, Complaint was stared at, disrespected and management created a hostile work environment. 2. On October 24, 2020, Complainant was called over the intercom to report 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. 2021002625 2 supervisor’s desk while at the supervisor’s desk Complainant could hear the manager giving Complainant’s supervisor your work instructions and the manager told the supervisor to be careful with this one. 3. On or about October 27, 20202, Complainant was issued a 7 Day Suspension dated October 18, 2020, for Failure to Follow Instructions. 4. On November 5, 2020, Complainant was given an Investigative Interview. 5. On or about November 18, 2020, Complainant was issued a 7 Day Suspension dated November 13, 2020, for Failure to Follow Instructions. 6. On December 8, 2020, Complainant’s manager entered the men’s restroom while Complainant was using the restroom to give him work instructions and to tell they would write Complaint up if he did not follow the instructions. 7. On December 31, 2020, management made inappropriate comments, verbally threatened Complainant by stating “I got something for you” and used the “N” word. The Agency dismissed claims (1) through (7) pursuant to 29 C.F.R. §1614.107(a)(2) for failure to timely file a formal complaint. Complainant filed the instant appeal. On appeal, Complainant contends that he submitted his appeal via priority mail on February 18, 2021, within the required time frame. However, he notes that extreme weather affected the state of Texas the week of February 14-20, 2021. The Agency contends on appeal that Complainant’s appeal was postmarked February 23, 2021, and was therefore untimely. ANALYSIS AND FINDINGS An agency shall accept a complaint from any aggrieved employee or applicant for employment who believes that he or she has been discriminated against by that agency because of race, color, religion, sex, national origin, age or disabling condition. 29 C.F.R. §§ 1614.103, .106(a). The Commission's federal sector case precedent has long defined an "aggrieved employee" as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Diaz v. Dep’t of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994). The regulation set forth at 29 C.F.R. § 1614.107(a)(2) provides, in relevant part, that an agency shall dismiss a complaint that fails to comply with the applicable time limits, unless the agency extends the time limits in accordance with 29 C.F.R. § 1614.604(c), which states these time limits are subject to waiver, estoppel and equitable tolling. A formal “complaint must be filed within 15 days of receipt of the notice required by § 1614.105 (d), (e) or (f).” (29 C.F.R. § 1614.106(b)). A document shall be deemed timely if it is received or postmarked before the expiration of the applicable filing period. (29 C.F.R. § 1614.604(b)). 2021002625 3 Both parties agree Complainant received his Notice of Right to File on February 4, 2021. Therefore, a formal complaint filed on or before February 19, 2021 would be timely under 29 C.F.R. § 1614.106. The envelope in which Complainant’s formal complaint was mailed does not contain a visible postmark date, although it does have a tracking number. (Complaint File, p. 62). Complainant states he purchased a priority mail envelope on February 18, 2021, and that he mailed his formal complaint that same day. He provides a receipt from the Rich Hill post office for the purchase of the envelope but no receipt to show the complaint was mailed that same day. The receipt for the purchase of the envelope does state, “USPS is experiencing unprecedented volume increases and limited employee availability due to the impacts of COVID-19.” (Complaint File, pp. 26-27). Therefore, Complainant states his complaint was timely filed on February 18, 2021, and any subsequent delays were beyond his control. The Agency disagrees and states the complaint was untimely filed on February 23, 2021. The Agency states that the envelope containing the complaint had a postmark of Tuesday, February 23, 2021. However, the envelope contained in the Complaint File does not appear to have a postmark. (Complaint File, p. 62). The Agency Complaint File also includes USPS Tracking Results which shows Complainant’s package, “[a]rrived” at a USPS Regional Facility, specifically the North Houston TX Distribution Center, at 10:59 pm on February 23, 2021. (Complaint File, pp. 60-61). However, this does not prove that Complainant postmarked his complaint that day, merely that his package was scanned at that time in that location. It is highly unlikely Complainant was able to postmark his complaint package at 10:59 pm, well outside of normal business or even lobby hours for the United States Postal Service. It is entirely possible the complaint was accepted at the Rich Hill post office on February 18, 2021, but that due to extreme weather in Houston and COVID-19 delays it was never scanned until it reached the North Houston Distribution Center on the night of February 23, 2021. Thus based on the evidence in the file, it is unclear when Complainant filed or postmarked his formal complaint. Although not the exact same scenario as in this case, the Commission has repeatedly found that a U.S. Postal Service's Track and Confirm print-out listing only a Complainant's state, city, and zip code without any further details of the address is not sufficient to establish actual receipt. See Complainant v. U.S. Postal Serv., EEOC Request No. 0520140487 (January 29, 2015); Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120141540 (June 27, 2014); Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120140438 (Mar. 6, 2014); Couch v. Dep't of Energy, EEOC Appeal No. 0120131136 (Aug. 13, 2013); King v. U.S. Postal Serv., EEOC Appeal No. 0120120457 (Jan. 11, 2013). Additionally, where as here, 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.” Guy v. Dep’t of Energy, EEOC Request No. 05930703 (January 4, 1994) (quoting Williams v. Dep’t of Defense, EEOC Request No. 05920506 (August 25, 1992)). In addition, in Ericson v. Dep’t of the Army, EEOC Request No. 05920623 (January 14, 1993), the Commission stated that “the agency has the burden of providing evidence and/or proof to support its final decisions.” See also Gens v. Dep’t of Defense, EEOC Request No. 05910837 (January 31, 1992). Given the foregoing, we find that the Agency has not met its burden to demonstrate that Complainant's appeal to the Commission is untimely. 2021002625 4 CONCLUSION The Agency's final decision dismissing the formal complaint is REVERSED and REMANDED for further processing as set forth below. 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. As provided in the statement entitled "Implementation of the Commission's Decision,” the Agency must send to the Compliance Officer: 1) a copy of the Agency’s letter of acknowledgment to Complainant, 2) a copy of the Agency’s notice that transmits the investigative file and notice of rights, and 3) either a copy of the complainant’s request for a hearing, a copy of complainant’s request for a FAD, or a statement from the agency that it did not receive a response from complainant by the end of the election period. IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) 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). 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). 2021002625 5 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. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. 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. 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. 2021002625 6 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 (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 August 25, 2021 Date