[Redacted], Marvin D., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency.

Equal Employment Opportunity Commission

Mar 2, 2022

Appeal No. 2022000721 (E.E.O.C. Mar. 2, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Marvin D.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. Appeal No. 2022000721 Agency No. 1C-331-0103-21 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated October 18, 2021, dismissing a formal complaint alleging 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 the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND During the period at issue, Complainant worked as a Custodian, PS-2, at the Agency’s Royal Palm Processing and Distribution Center in Opa Lacka, Florida. On October 1, 2021, Complainant filed a formal EEO complaint claiming that the Agency discriminated against him based on race, national origin, sex, religion, color, age, and in reprisal for prior protected EEO activity. On October 18, 2021, the Agency issued a final decision dismissing the formal complaint pursuant to 29 C.F.R. § 1614.107(a)(2), finding that the formal complaint was untimely filed. The Agency reasoned that Complainant received the Notice of Right to File a Formal Complainant (Notice), via certified mail, on July 23, 2021. 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. 2022000721 2 The Agency found, however, that Complainant did not file his formal complaint until October 1, 2021, which it found to be well beyond the 15-day filing period. The instant appeal followed. On appeal, Complainant argues that he never received the Notice on July 23, 2021. Specifically, Complainant asserts that the Agency forged his signature on the certified mailed receipt indicating that the notice was delivered on July 23, 2021. Complainant further asserts that the Agency has previously interfered with his mail concerning EEO matters. Complainant explains that he never received the original Notice, and the Agency resubmitted the Notice on September 15, 2021. Consequently, Complainant reasons that he received the second Notice on September 16, 2021 and timely filed his formal complaint on October 1, 2021. ANALYSIS AND FINDINGS The regulation set forth at 29 C.F.R. § 1614.107(a)(2) states, in pertinent part, that an Agency shall dismiss a complaint which fails to comply with the applicable time limits contained in 29 C.F.R. § 1614.106, which, in turn, requires the filing of a formal complaint within fifteen (15) days of receiving notice of the right to do so. The Agency’s decision to dismiss the instant formal complaint was proper. Our review of the record reflects that the Agency issued the July 21, 2021 Notice, via certified mail, to Complainant’s address on record. The mail confirmation in the record reflects that Complainant received the Notice on July 23, 2021. Consequently, Complainant had fifteen days, or until August 9, 2021,2 to timely file his formal complaint. However, Complainant did not file his complaint until October 1, 2021, approximately two months beyond deadline. On appeal, Complainant asserts that he never received the Notice. Complainant further asserts that the mail confirmation, signed by an individual identified as himself, was forged. Complainant also indicates that he received a “pink slip for a piece of mail that is blank [that he] never signed” but he noticed that USPS tracking indicated that the mail was delivered and signed by him. Consequently, Complainant emailed the EEO Counselor on September 14, 2021, and stated the following: I remember you told me around that time you were sending me a formal right to file EEO FORM Package. Please confirm weather [sic] or not this is the same tracking number as the EEO forms you sent me or not. I never had any mail stolen from me expect my formal EEO forms 3/2020. Now that I have this new experience of someone forging my name ILLEGALLY to get custody of my mail. I think it is probably also my EEO forms, and I have an idea who has the motive and the means to do so - USPS management. 2 Because fifteen days from July 23, 2021, fell on Saturday, August 7, 2021, the filing deadline was extended to the next business day - Monday, August 9, 2021. 2022000721 3 Please confirm the Tracking number and I need to file that formal complaint ASAP so I need a new package. The record supports that the EEO Counselor mailed Complainant a second Notice on September 15, 2021, Complainant received the forms on September 16, 2021, and he mailed his formal complaint fifteen days later, on October 1, 2021. Complainant’s explanation is not sufficient to explain why he did not timely file his formal complaint after receiving the July 21, 2021 Notice on July 23, 2021. By his own admission, Complainant acknowledged, in his September 14, 2021 email, that he had in his possession a pink slip for a piece of mail he received around the time the EEO Counselor had informed him that she would be mailing EEO forms required to file his formal complaint. Complainant further acknowledged that he believed this pink slip was related to the forms the EEO Counselor had mailed, but he requested that the EEO Counselor confirm the tracking number. However, it is unclear why Complainant waited two months after the Notice was delivered in July 2021 to contact the EEO Counselor in September 2021 to confirm the whereabouts of the Notice. Therefore, we find that the record supports that the Notice was delivered to Complainant’s address of record on July 23, 2021, and Complainant failed to timely file the formal complaint on or before August 9, 2021. CONCLUSION The Agency’s final decision to dismiss the formal complaint on the grounds of untimely filing of the formal 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). 2022000721 4 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. 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. 2022000721 5 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 March 2, 2022 Date