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

Equal Employment Opportunity Commission

Jun 3, 2021

Appeal No. 2021001615 (E.E.O.C. Jun. 3, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Clayton S,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 2021001615 Agency No. 4G-320-0304-20 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision (Dismissal) dated November 18, 2020, 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 was an applicant for the position of Mail Processing Assistant at the Agency’s Processing and Distribution Center facility in Jacksonville, Florida. On November 4, 2020, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (Black/White) and sex (male) when: 1. On November 15, 2019, Complainant was terminated during his probationary period; 2. On June 29, 2020, Complainant was offered and accepted the Mail Processing Assistant (MPA) position, but later that day the offer was rescinded; 3. On July 20, 2020, Complainant received a copy of his PS Form 50, Notification 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. 2021001615 2 of Personnel Action, which stated he had declined the MPA position, which is inaccurate information. The Agency dismissed claims 1 & 2 for untimely EEO Counselor contact and claim 3 for failure to state a claim. The instant appeal followed. ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination 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 record discloses that the incident raised in claim 12 occurred on November 15, 2019, and that Complainant learned of the incident raised in claim 2 on June 29, 2020. Complainant, however, did not initiate contact with an EEO Counselor until August 18, 2020, which is beyond the forty-five (45) day limitation period. EEOC regulations provide that the agency or the Commission shall extend the time limits when the individual shows that he was not notified of the time limits and was not otherwise aware of them, that he did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence he was prevented by circumstances beyond his control from contacting the Counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission. On appeal, Complainant has presented no persuasive arguments or evidence warranting an extension of the time limit for initiating EEO Counselor contact. With regard to claim 3, we note that the regulation set forth at 29 C.F.R. § 1614.107(a)(1) provides, in part, that an Agency shall dismiss a complaint that fails to state a claim. An Agency shall accept a complaint from any employee or applicant for employment who believes he or she has been discriminated against by that Agency because of race, color, religion, sex, national origin, age, disabling condition, genetic condition, or reprisal. 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. See Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (April 21, 1994). Following a review of the record we agree with the Agency that receiving a notification with incorrect information on it does not render Complainant aggrieved and hence claim 3 fails to state a claim. 2 Complainant on appeal clarified that he is not raising claim 1 as an issue but merely raising it as background information. 2021001615 3 On appeal, Complainant argues that: I believe that my situation meets these criteria in the manner that I was denied an employment opportunity without just cause, which further denied me the privilege of employment with the Postal Service. I simply requested that the Agency provide me with the written Postal Policy in the Gulf Atlantic District that dictates that employees will not be re-hired if they were terminated in their Probation Period. The Postal Service has yet to provide this information to me. We note, however, that Complainant is arguing that it is the denial of the employment opportunity that renders him aggrieved, and hence states a valid claim. Certainly, when timely- raised, the denial of an employment opportunity ordinarily does state a valid claim. But the denial of the employment opportunity was addressed in claim 2, which we have found to be untimely. We note that Complainant, in his formal complaint states that after being told to report to work he was notified “at 12:02 pm . . . I was told they could not offer me the position. [The Human Resources Supervisor] was contacted on June 29, 2020 to inquire as to why was the job retracted back from me and she had no explanation.” Complainant’s own words establish that he knew of the retraction by June 29, 2020, yet he did not contact an EEO Counselor until August 18, 2020. With regard to receiving a copy of the Form 50 that inaccurately claimed he had declined the position, Complainant has not shown how receiving such inaccurate information renders him aggrieved. We therefore find that claim 3 fails to state a claim. CONCLUSION The Agency’s Dismissal decision 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. 2021001615 4 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. 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. 2021001615 5 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 3, 2021 Date