[Redacted], Marielle L., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Northeast Area), Agency.

Equal Employment Opportunity Commission

Oct 6, 2021

Appeal No. 2020003630 (E.E.O.C. Oct. 6, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Marielle L.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Northeast Area), Agency. Appeal No. 2020003630 Hearing No. 520-2020-00003X Agency No. 1B-073-0036-18 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's May 4, 2020 final order implementing the decision of an EEOC Administrative Judge (AJ) 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. Upon review, the Commission finds that Complainant's complaint was properly dismissed pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO Counselor contact. At the time of events giving rise to this complaint, Complainant worked as a Distribution Operations Supervisor, EAS-17, at the Agency’s New Jersey International, National Distribution Center in Jersey City, New Jersey. On October 11, 2018, Complainant filed a formal complaint in which he alleged that the Agency discriminated against him on the bases of race (Indian-Asian), national origin (India), sex (Male), religion (Jain), and color (Indian Light Skin) when, on June 26, 2018, he was issued a Letter of Warning, and on June 26, 2018 and continuing, he was not given the opportunity to detail into the Acting Manager position. 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. 2020003630 2 The Agency dismissed the complaint for untimely EEO counselor contact, but in Marielle L. v. U.S. Postal Serv., EEOC Appeal No. 2019001814 (May 3, 2019), the Commission reversed the dismissal and remanded the complaint for further processing after finding that Complainant became aware of the Letter of Warning on July 2, 2018, not June 26, 2018. Therefore, Complainant’s EEO Counselor contact was timely based on the Agency’s stated EEO Counselor contact date of August 10, 2018. The Agency completed its investigation and notified Complainant of his right to request a hearing before an EEOC AJ. Complainant requested a hearing, but on April 27, 2020, the Agency moved for dismissal of the complaint, again on the grounds of untimely contact with an EEO counselor. On April 30, 2020, the AJ granted the Agency’s motion and dismissed the complaint. In the dismissal decision, the AJ determined that the start date of the EEO counselor contact period was at issue in the Commission’s appellate decision and the Commission had found that Complainant received the Letter of Warning on July 2, 2018, not June 26, 2018. The AJ noted that the Commission did not appear to make a factual determination as to Complainant’s actual EEO Counselor contact date. The AJ concluded that the record revealed that the Agency had erred by referring to August 10, 2018 as the EEO Counselor contact date when the evidence demonstrated that Complainant did not initiate contact with an EEO Counselor until August 24, 2018. As a result, the AJ found that Complainant’s August 24, 2018 EEO Counselor contact was beyond the 45-day limitation period. The Agency subsequently issued a final order in which it fully implemented the AJ’s decision. The instant appeal followed. The record discloses that the alleged discriminatory event occurred on July 2, 2018, when Complainant received a copy of the Letter of Warning dated June 26, 2018. During the course of the investigation, it was determined that Complainant first contacted the EEO office not on August 10, 2018 but rather on August 24, 2018, 54 days after the alleged discriminatory incident. Investigative Report, p. 23; Agency Motion to Dismiss, Exhibits A, B, D. On appeal, Complainant presented no arguments or evidence warranting an extension of the time limit for initiating EEO Counselor contact. We therefore find that the AJ’s decision dismissing Complainant's complaint was proper and 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. 2020003630 3 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. 2020003630 4 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 6, 2021 Date