[Redacted], Elly C., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency.Download PDFEqual Employment Opportunity CommissionOct 11, 2022Appeal No. 2022003910 (E.E.O.C. Oct. 11, 2022) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Elly C.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. Appeal No. 2022003910 Agency No. 1C-531-0164-22 DECISION Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated May 23, 2022, 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Postal Support Employee (PSE) Mail Processing Clerk, PS-06, at the Agency’s Peachtree Processing & Distribution Center (PDC) in Atlanta, Georgia. Complainant began her PSE job on December 1, 2021. On March 18, 2022, Complainant initiated contact with an Agency Equal Employment Opportunity (EEO) Counselor alleging the Agency subjected her to discrimination on the basis of sex (female) when on March 16, 2022, she learned that nothing was being done regarding her employment ending (by resignation in lieu of termination) after she rejected the sexual advances of her Manager of Distribution Operations (MDO) between December 1, 2021 and January 6, 2022, and MDO solicited other supervisors to harass Complainant. 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. 2022003910 2 Complainant stated, starting when she arrived at the PDC on December 1, MDO made inappropriate statements such as “you are so pretty;” asked her on a date and flirted with her; and stalked her by standing by her car in the employee parking lot. Complainant stated that a coworker told her that she was subsequently harassed about her attendance and work performance, including being told during her probationary period that she would be terminated for poor work performant, for rejecting MDO’s advances.2 On April 30, 2022, Complainant filed a formal EEO complaint reiterating the aforementioned allegations. In its May 23, 2022 final decision, the Agency dismissed Complainant’s complaint, pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO contact. The Agency stated that Complainant initiated EEO contact on March 18, 2022, which is more than 45 days beyond the most recent alleged discriminatory event of harassment occurred on January 6, 2022 and her resignation was effective January 7, 2022.3 The instant appeal from Complainant followed. ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination 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 to determine when the forty-five (45) day limitation period is triggered. See Howard v. Dep’t of the Navy, EEOC Request No. 05970852 (February 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. The record discloses that the alleged discriminatory event occurred at the latest on January 7, 2022 (the date Complainant’s employment ended), but Complainant did not initiate contact with an EEO Counselor until March 18, 2022, which is beyond the forty-five (45) day limitation period. We find, on appeal, Complainant has presented no persuasive arguments or evidence warranting an extension of the time limit for initiating EEO Counselor contact. 2 In the EEO Dispute Resolution Specialist Inquiry Report, the EEO Counselor noted, on January 7, 2022, Complainant had filed a prior complaint alleging the same claims. The Counselor stated that matter was identified as Agency No. 1C-531-0090-22 and Complainant withdrew that complaint at mediation. The Counselor noted that Complainant stated that she “refiled” this matter because she learned nothing was being done about the matter and she did not get to provide all information before. 3 The record contains a Notification of Personnel Action reflecting Complainant’s resignation effective January 7, 2022. 2022003910 3 Further, to the extent that Complainant previously initiated EEO contact and/or filed a complaint on the same matter, as the EEO Counselor asserted under Agency No. IC-531-0090-22, in January 2022, Complainant would not be able to file a subsequent complaint on the same matter. Once a complainant has withdrawn an informal complaint, absent a showing of coercion, the complainant may not reactivate the EEO process by filing a formal complaint on the same issue. See Allen v. Department of Defense, EEOC Request No. 05940168 (May 25, 1995). See also, pursuant to 29 C.F.R. § 1614.107(a)(1), an Agency shall dismiss a complaint that states the same claim that is pending before or has been decided by the agency or Commission. CONCLUSION Accordingly, the Agency's final decision dismissing Complainant's complaint 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. 2022003910 4 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. 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 11, 2022 Date Copy with citationCopy as parenthetical citation