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

Equal Employment Opportunity Commission

Oct 19, 2021

Appeal No. 2021004339 (E.E.O.C. Oct. 19, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Connie M.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 2021004339 Agency No. 4G-335-0141-21 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated June 22, 2021, dismissing a formal 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 During the period at issue, Complainant worked as a City Carrier Assistant, Grade 01/AA, at the Agency’s Post Office in Altamonte Springs, Florida. On January 20, 2021, the Agency notified Complainant it was terminating her employment. Complainant contested the termination by filing a grievance under the Agency’s collective bargaining agreement with one of its unions. On February 5, 2021, Complainant’s grievance was denied and the Agency’s termination went into effect. On March 30, 2021, Complainant initiated EEO Counselor contact. Informal efforts at resolution were not successful. 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. 2 2021004339 On June 1, 2021, Complainant filed a formal EEO complaint alleging the Agency subjected her to discrimination based on sex and in reprisal for prior protected activity when: 1) on July 9, 2020, the Postmaster made sexual advances toward Complainant; and 2) on January 20, 2021, Complainant was terminated from the Postal Service, which became effective on February 5, 2021. On June 22, 2021, the Agency issued a final decision. The Agency dismissed the formal complaint for untimely EEO Counselor contact. The instant appeal followed. ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R. § 1614.107(a)(2) states that the Agency shall dismiss a complaint that fails to comply with the applicable time limits. 29 C.F.R. § 1614.105(a)(1) requires that Complainant initiate contact with an EEO Counselor within 45 calendar days of the date of the matter alleged to be discriminatory or within 45 calendar days of the effective date of the personnel action. Here, the most recent alleged discriminatory event occurred on February 5, 2021, the effective date of Complainant’s employment termination. However, Complainant did not initiate contact with an EEO Counselor until March 30, 2021, which is beyond the forty-five-day limitation period. This Commission has consistently applied “reasonable suspicion” standard (as opposed to a “supportive facts" standard) to determine when the 45-day limitation period is triggered. Howard v. Dep’t of the Navy, EEOC Request No. 05970852 (Feb. 11, 1999). The Agency notified Complainant of its decision to terminate her employment on January 20, 2021. The record further establishes that the termination became effective on February 5, 2021. Griffin v. Sel. Svc. Sys., EEOC Appeal No. 01952978 (Jun. 18, 1996). Moreover, Complainant's filing of her union grievance or any other alternative remedial proceeding, did not toll this Commission’s time limit for contacting an EEO Counselor. Ellis v. U.S. Postal Serv., EEOC Appeal No. 01992093 (Nov. 29, 2000). CONCLUSION The Agency’s final decision dismissing the instant formal complaint for untimely EEO Counselor contact is AFFIRMED. 3 2021004339 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. 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). 4 2021004339 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 October 19, 2021 Date