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

Equal Employment Opportunity Commission

Dec 21, 2021

Appeal No. 2021005195 (E.E.O.C. Dec. 21, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Cortney E,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Eastern Area), Agency. Appeal No. 2021005195 Agency No. 1C-151-0029-21 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated August 16, 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., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND During the relevant time, Complainant worked for the Agency as a Mail Handler Equipment Operator, M-05, in Warrendale, Pennsylvania. On April 13, 2021, Complainant initiated EEO Counselor contact. Informal efforts to resolve her concerns were not successful. On July 19, 2021 Complainant filed a formal complaint. Complainant claimed that the Agency subjected her to discrimination on the bases of sex and disability when: 1. On May 4, 2020, management would not meet with her regarding her disability form; 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 2021005195 2. On September 20, 2020, she was sent two (2) threatening Return to Work Notices; 3. On April 8, 2021, management instructed her to provide documentation for an absence; and 4. On or around April 12, 2021, management threatened to give her an investigative interview. On August 16, 2021, the Agency issued the instant final decision. The Agency determined that claims 1 and 2 were not timely raised with an EEO Counselor and dismissed these claims pursuant to EEOC Regulations 29 C.F.R. § 1614.107 (a)(2). The Agency further determined that claims 3 and 4 failed to state a claim. Specifically, the Agency found that Complainant failed to demonstrate that the claims harmed the conditions and privileges of her employment or that the alleged conduct was so severe and pervasive that it created a hostile work environment. This appeal followed. ANALYSIS AND FINDINGS Untimely EEO Counselor contact (Claims 1 and 2) 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 personnel action, within forty-five (45) days of the effective date of the action. Here, the Agency properly dismissed claims 1 and 2 for untimely EEO counselor contact. The alleged discriminatory events occurred in May and September of 2020. However, Complainant did not initiate contact with an EEO counselor until April 13, 2021, well beyond the 45-day limitation period. Complainant had, or should have had, a reasonable suspicion of discrimination regarding claims 1 and 2 more than 45 days prior to her initial contact with an EEO counselor. On appeal, Complainant did not present persuasive arguments or evidence warranting an extension of the time limit for initiating EEO counselor contact. See 29 C.F.R. § 1614.604(c). Therefore, we find that the Agency's dismissal of claims 1 and 2 was proper. We also conclude that Complainant has not established an adequate nexus between claims (1) - (2) and the hostile work environment claim raised in allegations (3) - (4) to constitute a single claim of ongoing discriminatory harassment that can be considered timely raised under the holding in National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 122 S. Ct. 2061 (2002) (a complainant alleging a hostile work environment will not be time barred if all acts constituting the claim are part of the same unlawful practice and at least one act falls within the filing period). 3 2021005195 Failure to state a claim (Allegations 3 and 4) The regulation set forth at 29 C.F.R. § 1614.107(a)(1) provides, in relevant part, that an Agency shall dismiss a complaint that fails to state a claim. 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. Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994). Complainant has not alleged a personal loss or harm regarding a term, condition or privilege of her employment. Complainant has not claimed that she was disciplined or subjected to any adverse personnel action as a result of the alleged events. To the extent that Complainant is claiming a discriminatory hostile work environment, we find that the events described, even if proven to be true and considered together, would not indicate that Complainant has been subjected to harassment that was sufficiently severe or pervasive to alter the conditions of her employment See Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March 13, 1997). CONCLUSION The Agency's final decision dismissing Complainant's complaint is AFFIRMED for the reasons set forth herein. 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. 4 2021005195 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. 5 2021005195 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 December 21, 2021 Date