[Redacted], Campbell W., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Eastern Area), Agency.

Equal Employment Opportunity Commission

Sep 15, 2021

Appeal No. 2021003635 (E.E.O.C. Sep. 15, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Campbell W.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Eastern Area), Agency. Appeal No. 2021003635 Agency No. 1C-115-0002-21 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated May 24, 2021, dismissing Complainant’s 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 Mail Handler Assistant at the Agency’s Queens Processing and Distribution Center in Flushing, N.Y. On April 12, 2021, Complainant filed a formal complaint alleging that the Agency subjected Complainant to discrimination on the basis of race when: 1. On dates not specified, management called Complainant derogatory names and made fun of Complainant. 2. On December 16, 2020, Complainant was placed on Emergency Placement. 3. On or around March 3, 2021, Complainant was issued a Notice of Removal. 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. 2021003635 2 The Agency dismissed Complainant’s claim in its entirety, pursuant to pursuant to 29 C.F.R. § 1614.107(a)(2), due to the untimely filing of the formal complaint. In so doing, the Agency found that Complainant received the Notice of Right to File an Individual Complaint on April 10, 2021, and filed the formal complaint on April 30, 2021, which was beyond the 15-day regulatory filing deadline. The Agency also dismissed claims 1 and 2, pursuant to 29 C.F.R. §§ 1614.105(a)(1), 1614.107(a)(2), for untimely EEO Counselor contact. The instant appeal from Complainant followed. ANALYSIS AND FINDINGS 29 C.F.R. § 1614.106 provides in pertinent part that a formal complaint must be filed within 15 days of receipt of the notice of the right to file a formal complaint. An agency shall dismiss a complaint or portion of the complaint if it fails to comply with the 15-day time limit under 29 C.F.R. § 1614.107(a)(2), unless the time limit is extended in accordance with 29 C.F.R. § 1614.604(c). The instant record contains a copy of a Notice of Right to File an Individual Complaint (Notice) addressed to Complainant. A postal service Track and Confirm receipt (mail tracking receipt 9410 8036 9930 0135 4313 37) shows the Notice was delivered to Complainant by mail on April 10, 2021. It is undisputed that Complainant filed the formal complaint on April 30, 2021, by mail submission, which was beyond the 15-day regulatory filing deadline. On appeal, Complainant has not offered any explanation as to why the complaint was filed late. Since Complainant has failed to provide adequate justification for extending or tolling the time limit, we find that the complaint was properly dismissed as untimely raised. The Agency also dismissed claims 1 and 2 pursuant for untimely EEO Counselor contact. Because we find that the claims should be dismissed for other reasons, we do not need to consider alternative grounds for dismissal. CONCLUSION Complainant did not meet the timeliness requirement under 29 C.F.R. § 1614.106, or present a valid argument warranting an extension of the time limit. Therefore, the Agency's final decision dismissing Complainant's complaint 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 2021003635 3 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. 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. 2021003635 4 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 September 15, 2021 Date