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

Equal Employment Opportunity Commission

Sep 16, 2021

Appeal No. 2021002716 (E.E.O.C. Sep. 16, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Millicent H.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. Appeal No. 2021002716 Hearing No. 470-2020-00237X Agency No. 4J-460-0085-20 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated January 13, 2020, dismissing her 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND At the time of the events at issue, Complainant was a former employee of the Agency. On September 8, 2017, Complainant initiated equal employment opportunity (EEO) counseling contact alleging that the Agency discriminated against her on the bases of race (Caucasian) and age (over 55) when, in August 2017, she sought employment at its Batesville, Indiana Post Office and informed the Postmaster that she had reinstatement rights from prior Federal and Agency employment, but the Agency failed to contact her for hire. The Agency identified that matter as Agency No. 4C-450-0120-17, which it dismissed on November 30, 2017. 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. 2021002716 2 On June 26, 2020, Complainant again initiated EEO counseling contact alleging that the Agency discriminated against her on the bases of race, sex (female), age, and disability (on the job injury) when, on July 19, 2019, it failed to reinstate her to Agency employment although her doctor released her to return to working. The Agency identified the matter as Agency No. 4J- 460-0085-20. On August 4, 2020, the Agency issued a Notice of Right to File (NORF) informing Complainant that she could file a formal complaint within 15 days of receipt of the NORF. A postal service tracking record states, on August 12, 2020, the NORF was delivered to Complainant’s address of record and signed for at that address. There is no evidence that Complainant ever filed a formal complaint. Instead in September 2020, Complainant requested a hearing before an EEOC Administrative Judge (AJ). In response to Complainant’s hearing request, the Agency informed the AJ that Complainant had not worked for the Agency since 20012 and did not file a formal complaint regarding Agency No. 4J-460-0085-20 so a request for hearing was inappropriate. The assigned AJ issued an Order of Dismissal, finding that Complainant failed to show that she worked for the Agency after 2001, that she requested reinstatement in 2017 or 2019, or that she filed a timely formal complaint following the August 2020 NORF. The Agency then issued a FAD dismissing the instant matter because Complainant did not respond to the NORF and the timeframe to file a formal complaint had elapsed. The instant appeal from Complainant followed. On appeal, Complainant stated that she worked for the Agency in 2017, sought reinstatement in 2019, and filed a timely formal complaint on the failure to reinstate her in 2019. ANALYSIS AND FINDINGS The Commission finds that the Agency properly terminated processing the instant matter. The record shows that Complainant failed to file a formal EEO complaint, much less a timely one, in response to the Agency’s August 4, 2020 NORF. The record shows, on August 12, 2020, the August 4 NORF was delivered to and signed for at Complainant’s address of record. There is no reliable evidence that Complainant ever filed a formal complaint in response. On appeal, Complainant supports her claim that she filed a formal complaint in response to the August 4 NORF by providing a copy of the complaint she filed in 2017 for Agency No. 4C-450- 0120-17. In the copy of this complaint submitted by Complainant, the date “9-19-19” was clearly added much later to the form in the block asking for “Date on Which Alleged Act(s) of Discrimination Took Place” because the complaint form indicates it was signed by Complainant more than two years earlier on July 19, 2017. In sum, the record simply does not support a finding that Complainant ever filed a formal EEO complaint on the 2019 matter. 2 The record contains a Notification of Personnel Action, effective May 5, 2001, for Complainant stating, “failure to report for work, poor attendance.” 2021002716 3 Based on the above, we AFFIRM the Agency's final decision closing its pre-complaint processing in Agency No. 4J-460-0085-20. 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. 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). 2021002716 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 September 16, 2021 Date