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

Equal Employment Opportunity Commission

Jan 8, 2021

Appeal No. 2020003921 (E.E.O.C. Jan. 8, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Dominic S.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Pacific Area), Agency. Appeal No. 2020003921 Agency No. 1F055000119 DISMISSAL OF APPEAL Complainant filed an appeal with the Equal Employment Opportunity Commission (“EEOC” or “Commission”) concerning his informal EEO 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., and the Age Discrimination in Employment Act of 1967 (“ADEA”), as amended, 29 U.S.C. § 621 et seq. On December 12, 2019, the assigned EEO Specialist issued an “Initial Contact Letter” and “Notice of Right to File a Formal Complaint” to Complainant for Agency Case No. 1F55000119. These documents were issued separately with different tracking numbers. The December 12, 2019 Initial Contact Letter informed Complainant that the EEO Counselor received his pre-complaint documents2 that day, and summarized Complainant’s allegations as: 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 The record contains a September 16, 2019 pre-complaint intake form for Agency Case No. 1F955000119, and a November 4, 2019 (received by the Agency on November 29, 2019) pre- complaint intake form without a complaint number. The pre-complaint documents also reveal that the Agency mistakenly included Agency Case No. 1F955000119 when it consolidated a number 2020003921 2 “on August 9, 2019, management harassed [Complainant] (unspecified) and [made] statements about [him] brushing [his] teeth at work” based on race, sex, and age. Among other things, the letter also thanks Complainant for electing to participate in mediation, references information on the EEO informal counseling process, and requests that Complainant “please contact [his EEO Counselor] as a courtesy” to discuss Complainant’s complaint. The December 12, 2019 Notice of Right to File a Formal Complaint stated that Complainant “alleged discrimination based on Race, Sex, Retaliation, and Age [when, on] August 9, 2019; Management harassed [him] (unspecified) and also made comments about [him] brushing [his] teeth at work.” The Notice also informed Complainant that he had 15 calendar days from the date of receipt to file a formal complaint of discrimination, and once Complainant received a final agency decision (“FAD”) on his Formal Complaint, he could appeal to the Commission if he disagreed with its outcome. On April 9, 2020, Complainant submitted an appeal form to the Commission regarding Agency Case No. 1F055000119, along with the December 12, 2019 Initial Interview Letter. However, he did not provide or reference a final agency decision (“FAD”) for his complaint, which is necessary for an appeal to this Commission. In response to an inquiry by the Commission, the Agency explained that it closed Agency Case No. 1F955000119 without issuing a FAD because Complainant failed to respond to the December 12, 2019 Notice of Right to File a Formal Complaint. The Agency provided the Commission with Complainant’s pre-complaint documents (and his submissions for prior complaints), which included the Notice, but not the December 12, 2019 Initial Inquiry. It is well established that a complainant is deemed to have abandoned an allegation when, after seeking counseling on an allegation, they do not move forward with a formal complaint on the allegation. See Sterling v. United States Postal Serv., EEOC Appeal No. 01A34646 (February 19, 2004) (citing Small v. United States Postal Serv., EEOC Request No. 05980289 (July 6, 1999)). Moreover, at all times, the complainant is responsible for proceeding the complaint, regardless of legal representation. See 29 C.F.R. §1614.605(e). The Agency has the burden of proving that the complainant received the Notice of Right to File, and that the Notice clearly informed the complainant of the 15-day filing time frame. See Paoletti v. United States Postal Serv., EEOC Request No. 05950259 (Aug. 17, 1995), see also Williams v. Dep’t of Def., EEOC Request No. 05920506 (Aug. 25, 1992) (an agency always bears the burden of obtaining sufficient information to support a reasoned determination as to timeliness). An agency must support its decision to close a case due to a complainant’s untimely filing of a formal complaint with documentation of actual receipt at the Complainant’s address of record. See Complainant v. Dep't of Veterans Affairs, EEOC Appeal No. 0120140083 (Feb. 11, 2014). of Complainant’s other pending EEO Complaints. It appears processing was delayed, and Complainant reached out to the Agency’s regional EEO Office for assistance. 2020003921 3 It is also well established that an agency cannot rely on tracking information containing only a generalized reference to city and zip code to prove receipt by complainant. See, e.g., Complainant v. United States Postal Serv., EEOC Appeal No. 0120140438 (Mar. 6, 2014) (Track and Confirm print-out indicating a delivery to a particular city and state without further details regarding the address did not establish actual receipt). Here, the Agency failed to meet its burden, as the only evidence to support that Complainant received the Notice of Right to File was a tracking number. Typically, the Commission will remand complaints dismissed for failure to file a formal complaint when an agency fails to provide sufficient evidence that the complainant received a Notice of Right to File a Formal Complaint. However, in this instance, even if Complainant did not receive the Notice of Right to File, he failed to proceed his case when he did not call the EEO Counselor as requested in the Initial Contact Letter, or take further action for nearly five months. We note that a complainant who has engaged in prior EEO activity is deemed aware of the time frames required for filing complaints in the EEO procedure. See Williams v. Dep’t of Homeland Sec., EEOC Appeal No. 0120111236 (Oct. 4, 2011) citing Coffey v. Dep’t. of the Navy, EEOC Request No. 05901006 (Nov. 16, 1990); see also Kader v. United States Postal Serv., EEOC Request No. 05980473 (Jun. 24, 1999). Complainant states in the record that the instant complaint was his tenth EEO action, establishing that he was aware of the EEO process. Complainant’s appeal had not addressed his delay in pursuing his complaint. CONCLUSION Accordingly, Complainant's April 9, 2020 appeal is hereby dismissed. See 29 C.F.R. § 1614.403(c). STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0620) The Commission may, in its discretion, reconsider this appellate decision if the 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). 2020003921 4 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, 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. The court has the sole discretion to grant or deny these types of requests. 2020003921 5 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 January 8, 2021 Date