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

Equal Employment Opportunity Commission

Aug 9, 2021

Appeal No. 2021003282 (E.E.O.C. Aug. 9, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Neal O.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. Appeal No. 2021003282 Agency No. 4E-800-0106-20 DECISION Complainant appeals to the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency’s decision dated July 30, 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., the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq., and Title II of the Genetic Information Nondiscrimination Act of 2008, 42 U.S.C. § 2000ff et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Supervisor, Customer Service, E-17, at the Agency’s Post Office in Casper, Wyoming. On July 14, 2020, Complainant filed a complaint alleging that the Agency subjected him to discrimination based on race (African-American), sex (male), color (black), age (57), genetic information (not specified), and in reprisal for prior protected EEO activity when: 1. In September 2019, Complainant was not interviewed for the position of Supervisor, Maintenance Operations; and 2. On December 12, 2019, Complainant received a Letter of Warning in Lieu of a 14-Day Suspension. 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. 2021003282 2 Complainant has not challenged the framing of the complaint. In its July 30, 2020 decision, the Agency dismissed both claims. The Agency dismissed Claim 1 for stating the same claim that is pending before or has been decided by the agency or Commission, pursuant to 29 C.F.R. § 1614.107(a)(1), and it dismissed Claim 2 for untimely EEO counselor contact pursuant to 29 C.F.R. § 1614.107(a)(2). The Agency determined that Claim 1 stated the same claim that was part of a prior informal EEO complaint that Complainant voluntarily withdrew after mediation. For Claim 2, the Agency concluded that Complainant’s EEO contact was beyond the 45-day limitation period. The instant appeal followed. ANALYSIS AND FINDINGS Dismissal of Claim 1 EEOC Regulation 29 C.F.R. § 1614.107(a)(1) provides that an agency shall dismiss a complaint that states the same claim that is pending before or has been decided by the agency or Commission. The Commission has held that in order for a complaint to be dismissed for stating the same claim, the elements of the complaint must be identical to the elements of the prior complaint in time, place, incident, and parties. See Jackson v. Dep’t of the Air Force, EEOC Appeal No 01955890 (April 5, 1996), rev’d on other grounds, EEOC Request No. 05960524 (April 24, 1997). Here, neither the Agency nor the Commission issued a decision on Complainant’s previous EEO complaint (Agency No. 4E-800-0167-19), because Complainant withdrew the prior complaint on December 3, 2019, as a result of mediation during the pre-complaint phase. We have previously held that a once a complainant has withdrawn an informal complaint, absent a showing of coercion, the complainant may not reactivate the EEO process by filing a formal complaint on the same issue. See Alvaro M. v. Dep’t of Commerce, EEOC Appeal No. 2020004133 (Jan. 6, 2021) (citation omitted). Complainant makes no argument on appeal that he was coerced into withdrawing his prior complaint; nor does he dispute that both complaints contain the same claim. The record shows that the instant complaint (Agency No. 4E-800-0106-20) and the prior complaint (Agency No. 4E-800-0167-19) raise the same issues with respect to Claim 1. Accordingly, we find that the Agency properly dismissed the claim. Even if Complainant had not withdrawn this claim, it would still be properly dismissed for untimely EEO counselor contact pursuant to 29 C.F.R. § 1614.107(a)(2). Dismissal of Claim 2 EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination be brought to the attention of the Equal Employment Opportunity Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of personnel action, within 45 days of the effective date of the action. 2021003282 3 The Commission has adopted a “reasonable suspicion” standard (as opposed to a “supportive facts” standard) to determine when the 45-day limitation period is triggered. See Howard v. Dep’t of the Navy, EEOC Request No. 05970852 (Feb. 11, 1999). Thus, the time limitation is not triggered until a complainant reasonably suspects discrimination, but before all the facts that support a charge of discrimination have become apparent. EEOC regulations provide that the Agency or the Commission shall extend the time limits when the individual shows that he was not notified of the time limits and was not otherwise aware of them, that he did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence he was prevented by circumstances beyond his control from contacting the Counselor within the time limits, or for other reasons considered sufficient by the Agency or the Commission. 29 C.F.R. § 1614.105(a)(2). Here, the incident of discrimination-Complainant’s receipt of the Letter of Warning-occurred on December 12, 2019. There is no dispute that Complainant waited until March 30, 2020, to initiate EEO counselor contact. This is beyond the 45-day time limit. Complainant has not presented any persuasive arguments or evidence warranting an extension of the time limit for initiating EEO counselor contact. Because Complainant’s initial EEO counselor contact was untimely, we find that the Agency properly dismissed Claim 2 pursuant to § 1614.107(a)(2). CONCLUSION The Agency’s final decision dismissing the 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). 2021003282 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. 2021003282 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 August 9, 2021 Date