[Redacted], Debroah C., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Great Lakes Area), Agency.

Equal Employment Opportunity Commission

Feb 11, 2021

Appeal No. 2021000821 (E.E.O.C. Feb. 11, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Debroah C.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Great Lakes Area), Agency. Appeal No. 2021000821 Agency No. 4J-630-0148-20 DECISION On October 30, 2020, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated October 20, 2020, dismissing her 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant was employed by the Agency as a City Carrier, Level Q1 at the Timothy Gaffney Post Office in Overland, Missouri. On October 2, 2020, Complainant filed an equal employment opportunity (EEO) complaint alleging that the Agency discriminated against her based on her race (Black), age (45), disability and reprisal for prior protected EEO activity under Title VII, the ADEA, and the Rehabilitation Act when: 1. It did not comply with their January 28, 2020 grievance settlement to process pay adjustments to restore 16 hours of her sick leave charged for November 18 - 19, 2019, and 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. 2021000821 2 instead charge the leave to Office of Workers’ Compensation Programs/Leave Without Pay (OWCP/LWOP Code 49), making the two days eligible for wage loss compensation from OWCP; and 2. By letter dated March 9, 2020, Agency human resources denied her request to transfer to the Gateway District because she had an unacceptable safety record. The Agency dismissed issue 1 for failure to state a claim. It reasoned that Complainant was using the EEO process to collaterally attack the grievance process, and the place to address a violation of a grievance settlement was in the grievance process. Complainant initiated contact with the EEO office on issue 2 on June 22, 2020. The Agency dismissed issue 2 for failure to timely initiate EEO counseling because Complainant surpassed the 45 day time limit to initiate EEO counseling. The instant appeal followed. On appeal, Complainant submits documentation in support of the substance of her claim. Regarding issue 2, Complainant argues that she was unaware of the 45 day time limit. ANALYSIS AND FINDINGS We agree with the Agency’s dismissal of issue 1. See Mike S. v. USPS, EEOC Appeal No. 0120171511 (Jun. 29, 2017) (EEO complaint that breach of a grievance settlement agreement was discriminatory failed to state a claim because the complainant was using the EEO process to collaterally attack the grievance process). An aggrieved person must seek EEO counseling within 45 days of the date of the alleged discriminatory action, or in the case of a personnel action, within 45 days of the effective date of the action. 29 C.F.R. § 1614.105(a)(1) & .107(a)(2). The agency or the Commission shall extend the 45-day time limit when the individual shows that she was not notified of the time limits and was not otherwise aware of it. Id., at .105(a)(2). On appeal, Complainant argues that she was unaware of the 45-day time limit. The record contains a May 20, 2020 affidavit by a supervisor in the Complainant’s post office stating that since January 1, 2020, USPS EEO Poster 72, which advises of the time limit to initiate EEO counseling, has been posted by employee time clocks, the employee break room, and the main lobby. While the record does not contain a copy of the poster, we take administrative notice that Poster 72 advises of the 45-day time limit. The Agency found that because of the postings, Complainant had constructive knowledge of the 45-day time limit. We agree. Salvatore B. v. USPS, EEOC Request No. 0520160186 (Sep. 30, 2016) (constructive knowledge of 45-day time limit will be imputed to a complainant where an agency has fulfilled its statutory duty of conspicuously posting EEO posters informing employees of this time limit). 2021000821 3 In its FAD, the Agency recounted that Complainant filed a previous EEO complaint. We take administrative notice that she filed the prior complaint in May 2020, and initiated EEO counseling thereon in February 2020. See complaint file in EEOC Appeal No. 2020004389. Based on this, we find Complainant had constructive knowledge of the 45 day time limit. Laurice S. v. Veterans Affairs, EEOC Appeal No. 0120143076 (Mar. 30, 2016) (an individual who has engaged in prior EEO activity has constructive knowledge of the 45 day time limit). The FAD 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. 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. 2021000821 4 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 February 11, 2021 Date