[Redacted], Chong O., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency.

Equal Employment Opportunity Commission

Jun 7, 2021

Appeal No. 2021002382 (E.E.O.C. Jun. 7, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Chong O.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. Appeal No. 2021002382 Agency No. 1C-081-0049-20 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from an Agency decision, dated February 8, 2021, pertaining to his complaint of unlawful employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. The Commission accepts the appeal in accordance with 29 C.F.R. § 1614.405. BACKGROUND During the relevant time, Complainant worked as a Mail Handler at the Agency’s South Jersey Processing & Distribution Center in Bellmawr, New Jersey. Believing that he was subjected to discrimination when, on August 12, 2020, he was denied an overtime opportunity Complainant contacted an EEO counselor. Informal efforts to resolve Complainant’s concerns were unsuccessful. Subsequently, on January 25, 2021, Complainant filed a formal complaint based on disability. In its February 8, 2021 final decision, the Agency dismissed the formal complaint for untimely counselor contact. The Agency reasoned that Complainant did not contact an EEO counselor until September 29, 2020, more than forty-five days after the allegedly discriminatory even on 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. 2021002382 2 August 12, 2020. Further, the Agency noted that Complainant did not claim he was unaware of the time limit and that he had constructive knowledge due to the posting of EEO information. Complainant filed the instant appeal. On appeal, Complainant states: “I filed my EEO case online [but] I was told by [the EEO Counselor] that my complaint was filed on the wrong format. She sent me the proper paperwork with a time constraint. Time had gone passed I called [EEO Counselor] I stated I hadn’t heard anything. She stated [the allegedly discriminatory management official] hadn’t replied. During this time timeliness was never mentioned.” 2 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 a personnel action, within forty-five (45) days of the effective date of the action. 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 Howard 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. EEOC regulations provide that the agency or the Commission shall extend the time limits when the individual shows that she was not notified of the time limits and was not otherwise aware of them, that she did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence she was prevented by circumstances beyond her control from contacting the Counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission. In the instant case, the Agency reasons that Complainant did not contact the EEO counselor until September 29, 2020. This is one day beyond the forty-five day time limit. As noted above, on appeal Complainant explains that “my complaint was filed on the wrong format…” and the EEO Counselor provided him with the correct form. Complainant, however, does not identify a particular date, or specifically dispute that his initial contact was made on September 29, 2020. The Agency record does include correspondence, dated October 2, 2020, from the EEO Counselor to Complainant, acknowledging Complainant’s request for counseling but noting that his submission on a formal complaint form was improper. Enclosed was the proper form, as well as a request to extend the counseling period, with instructions to return the form within ten days. We acknowledge that record does not contain Complainant’s original submission. 2 Complainant also asserted that his complaint was timely filed. Specifically, he noted that, although the Notice of Right to File was dated December 22, 2020, he did not receive it until January 4, 2021. Further, he claims to have mailed it on January 18, 2021 and argues it was “not his fault” if the Agency did not receive it until January 25, 2021 without a postmark. The complaint, however, was not dismissed on the grounds that it was untimely filed. 2021002382 3 The record, however, does include an executed “Information for Pre-complaint Counseling Form”, signed by Complainant on October 10, 2020. On the form, Complainant identified September 29, 2020 as the date he requested counseling. It is this date that was relied upon by the Agency in its dismissal, not the date the proper form was later submitted. Therefore, we find that the Agency’s decision to dismiss the formal complaint for untimely counselor contact is supported by the record. CONCLUSION Accordingly, the Agency’s final decision to dismiss the instant formal complaint, for the reason discussed above 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. 2021002382 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 June 7, 2021 Date