[Redacted], Erwin B., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (USPS Field Areas and Regions Agency.

Equal Employment Opportunity Commission

Jul 12, 2021

Appeal No. 2021002913 (E.E.O.C. Jul. 12, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Erwin B.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (USPS Field Areas and Regions Agency. Appeal No. 2021002913 Hearing No. 560-2020-00016X Agency No. 4G-730-0015-19 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final order dated March 11, 2021, implementing the dismissal by an Administrative Judge (AJ) of a formal complaint alleging unlawful employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND During the period at issue, Complainant worked as a Letter Carrier at the Agency’s Post Office in Ponca City, Oklahoma. On January 16, 2019, Complainant initiated EEO Counselor contact. Informal efforts to resolve his concerns were unsuccessful. On May 6, 2019, Complainant filed a formal EEO complaint alleging the Agency subjected him to discrimination based on disability and in reprisal for prior protected EEO activity when, on 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. 2021002913 2 approximately 31 occasions, he was denied leave, his work schedule was arbitrarily changed, or he was denied premium pay.2 After an investigation, the Agency provided Complainant with a copy of the report of investigation and notice of the right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing, and the Agency submitted a Motion to Dismiss. Complainant did not file a response. In accordance with the instructions given by the AJ in an Initial Conference Order on January 29, 2021, Complainant submitted to the Agency a list of dates in which he believed he was discriminated against regarding pay and/or leave issues which ranged from June 17, 2017 through June 3, 2018. On March 1, 2021, the AJ dismissed Complainant’s formal complaint, pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO Counselor contact. The AJ determined that Complainant initiated EEO Counselor contact on January 16, 2019, which she found to be beyond the 45-day limitation period. On March 11, 2021, the Agency issued a final order implementing the AJ’s dismissal. The instant appeal followed. ANALYSIS AND FINDINGS 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. Additionally, regulation 29 C.F.R. § 1614.109(b) provides that AJs have the authority to dismiss complaints for failure to timely initiate EEO Counselor contact. Here, the AJ properly dismissed the formal complaint on the grounds of untimely EEO Counselor contact. The record reflects that the alleged discriminatory events occurred between June 17, 2017 and June 3, 2018. However, Complainant did not initiate contact with an EEO Counselor until January 16, 2019, 227 days after the last discriminatory event, and well beyond the 45-day limitation period. Complainant had, or should have had, a reasonable suspicion of discrimination regarding his claims at the time they occurred. 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 AJ’s dismissal of the instant formal complaint was proper. 2 Complainant’s formal complaint included an additional claim which the Agency dismissed on procedural grounds. Complainant does not appeal or otherwise contest the Agency dismissal of this claim. Therefore, we do not address this matter further. 2021002913 3 CONCLUSION The Agency's final order implementing the AJ's dismissal for untimely EEO Counselor contact is AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which 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 to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party shall have twenty (20) calendar days of receipt of another party’s timely request for reconsideration in 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). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). The request or opposition must also include proof of service on the other party. Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your 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). 2021002913 4 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 July 12, 2021 Date