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

Equal Employment Opportunity Commission

Apr 22, 2021

Appeal No. 2021001377 (E.E.O.C. Apr. 22, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Eldon P.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Pacific Area), Agency. Appeal No. 2021001377 Agency No. 4F-956-0089-20 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated October 26, 2020, dismissing a formal 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. BACKGROUND During the period at issue, Complainant worked for the Agency as a Supervisor, Customer Service, in Sacramento, California. On September 23, 2020, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination in reprisal for prior protected EEO activity. On October 26, 2020, the Agency issued a final decision. The Agency determined that the formal complaint was comprised of the following claim: On January 30, 2020, [Complainant] was forced to attend a meeting at which management threatened to move [her] from [her] assigned area. 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. 2021001377 2 In a footnote, in its final decision, the Agency stated that Complainant also alleged that on March 6, 2020, she received a letter from the Agency regarding compliance with a settlement agreement. The Agency found that Complainant’s claims regarding her settlement agreement would be processed separately under Agency Case No. 4F-956-0039-18. The Agency noted that Complainant has filed a petition for enforcement with OFO on this matter. The Agency dismissed the instant formal complaint for untimely EEO Counselor contact. The Agency reasoned that the alleged incident occurred on January 30, 2020 but did not initiate EEO contact until June 16, 2020, outside of the applicable time period. The Agency also dismissed Complainant’s complaint on the alternate grounds of failure to state a claim. The Agency reasoned the alleged incident did not deter Complainant or others from engaging in protected activity. The instant appeal followed. On appeal, Complainant requests that we reverse the Agency’s final decision dismissing her complaint. Complainant states that the crux of her complaint is a letter she received on March 6, 2020 regarding a settlement agreement. Complainant states that the record reflects that she initiated EEO contact on March 23, 2020 (as set forth in an email from an EEO Specialist). In response, the Agency acknowledges that the proper EEO contact date is March 23, 2020 (rather than June 16, 2020, as set forth in its final decision). However, the Agency asserts that this EEO contact date is still more than 45 days from the date of the alleged incident, January 30, 2020. Thus, the Agency asserts that dismissal for untimely EEO Counselor contact is proper. ANALYSIS AND FINDINGS As an initial matter, we find that the Agency properly framed Complainant’s claim. Complainant, in her formal complaint and during EEO Counseling, raised the issue that in a Janaury 30, 2020 meeting, management threatened that they would assign her to a different office. To the extent that Complainant is alleging that the Agency “retaliated” against her when she received a letter on March 6, 2020 regarding a prior EEO settlement, we find that the Agency properly found that this matter should be processed separately, because it involved a settlement breach claim. Commission records reflects that Complainant previously filed an appeal alleging breach of a settlement agreement. In EEOC Appeal No. 2019002799 (Nov .5, 2019), OFO remanded the matter to the Agency to comply with the settlement agreement. In a letter dated December 2019, OFO ceased compliance on this matter setting forth that the Agency had provided sufficient documentation that it had taken the corrective action. Thus, to the extent, Complainant is alleging that the Agency has engaged in new actions that violate the settlement agreement, she should contact the EEO Director, in writing, with these new breach claims. 29 C.F.R. § 1614.504(a). 2021001377 3 We find that the Agency properly dismissed the instant complaint for untimely EEO Counselor contact. 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 a personnel action, within forty-five (45) days of the effective date of the action. The Commission has adopted a "reasonable suspicion" standard (as opposed to a "supportive facts" standard) to determine when the forty-five (45) day limitation period is triggered. See Howard v. Dep’t of the Navy, EEOC Request No. 05970852 (Feb. 11, 1999). Thus, the time limitation is not triggered until a complainant reasonably suspects discrimination, but before all the facts that support a charge of discrimination have become apparent. 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. The alleged incident occurred on January 30, 2020 (a meeting during which Complainant alleges that she was threatened by Agency management that she would be moved to a different office). The record reflects that Complainant initiated EEO contact on March 23, 2020. Specifically, the record contains an email from an EEO Specialist dated June 2, 2020. Therein, the EEO Specialist provides that Complainant appears to be raising a new complaint based on reprisal and that the initial contact date is March 23, 2020, the postmark date. The March 23, 2020 contact date is beyond the applicable time limit (45 days). Complainant has not provided adequate justification for extending the applicable time limit. Accordingly, we AFFIRM, for the reason set forth herein, the Agency’s final decision dismissing Complainant’s complaint.2 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. 2 Because we affirm the Agency’s final decision for the reason set forth herein, we need not address the Agency’s alternate grounds for dismissal. 2021001377 4 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). 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. 2021001377 5 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 April 22, 2021 Date