[Redacted], Jonathan M., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Capital Metro Area), Agency.Download PDFEqual Employment Opportunity CommissionFeb 2, 2021Appeal No. 2021000719 (E.E.O.C. Feb. 2, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Jonathan M.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Capital Metro Area), Agency. Appeal No. 2021000719 Agency No. 4K-230-0129-20 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated October 13, 2020, dismissing his 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND During the relevant period, Complainant worked for the Agency as a Carrier Technician in Petersburg, Virginia. The record reflects that on June 3, 2018, Complainant submitted a Motion to Amend relating to a prior EEO case (Agency Case No. 4K-230-0177-16) which was before an EEOC Administrative Judge (AJ).2 On June 11, 2020, the AJ denied Complainant’s Motion to Amend. However, the AJ ordered the Agency to process the newly proposed claims as a separate EEO complaint (the 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 Agency decision on this complaint is pending on appeal before the Commission, under Appeal No. 2020005306. 2 2021000719 instant formal complaint) and consider the date of the filing of the Motion to Amend (June 3, 2018) as the date Complainant initiated EEO contact. On September 16, 2020, Complainant was issued a Notice of Right to File a Complaint of Discrimination and, on September 21, 2020, Complainant filed the instant formal complaint alleging that the Agency subjected him to discrimination on the bases of disability and in reprisal for engaging in protected EEO activity when: 1. on November 17, 2017, management instructed him to move his car from the parking lot; 2. on November 17, 2017, management spoke to him disrespectfully; and 3. on an unspecified date in November 2017, he was denied the use of the office computer. In its October 13, 2020 decision, the Agency dismissed the formal complaint for untimely EEO Counselor contact, pursuant to 29 C.F.R. § 1614.107(a)(2). 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 a personnel action, within forty-five (45) days of the effective date of the action. Here, it is undisputed that the alleged discriminatory events occurred in November 2017, when Complainant was instructed to move his car from the parking lot, management spoke to him disrespectfully, and he was denied the use of the office computer. However, Complainant did not initiate contact with an EEO Counselor until June 3, 2018, well beyond the forty-five (45) day limitation period. On appeal, Complainant claimed he was not aware of the forty-five (45) day limitation period. We note, however, in the EEO Counselor’s Report, the Counselor stated that the EEO Poster 72 outlining the requisite 45-day limitation was on display in the Petersburg Main facility. More significantly, we note that in the above referenced previously filed EEO complaint (Agency No. 4G-230-0177-06), Complainant signed a document on July 19, 2016. Therein, Complainant certified that he was in receipt on that day, of Publication 133, “What You Need to Know About EEO.” We take administrative notice that Publication 133 details pre-complaint processing and addresses the time limits for timely initiating EEO Counselor contact. See e.g., Edwards v. USPS, EEOC Appeal No. 01960950 (June 26, 1996). We are therefore unpersuaded by Complainant’s appellate assertion in the instant appeal that he was unaware of the limitation period for initiating timely EEO contact. 3 2021000719 Moreover, we determine that Complainant had, or should have had, a reasonable suspicion of discrimination in November 2017, and that his June 3, 2018 initial contact regarding the subject claims were untimely raised. CONCLUSION We AFFIRM the Agency’s final decision dismissing the formal complaint for untimely EEO contact. 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. 4 2021000719 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 2, 2021 Date Copy with citationCopy as parenthetical citation