[Redacted], Nevada R, 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Great Lakes Area), Agency.

Equal Employment Opportunity Commission

Mar 8, 2021

Appeal No. 2020004716 (E.E.O.C. Mar. 8, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Nevada R,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Great Lakes Area), Agency. Appeal No. 2020004716 Agency No. 4J-630-0092-19 DECISION Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision (Dismissal) dated July 18, 2019, dismissing her 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Carrier Technician, Q2, at the Agency’s Post Office facility in Fayette, Missouri. On July 3, 2019, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of sex (female), disability, and age (47 years old at time of incidents) when: 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. 2020004716 2 1. On an unspecified date around April 2019, management controverted Complainant’s Office of Worker's Compensation (OWCP) claim; and 2. On dates not specified in 2019, management did not give Complainant assistance with her OWCP CA-7 forms. The Agency dismissed the claims on the grounds they constituted a collateral attack on the Department of Labor’s OWCP process. The instant appeal followed. ANALYSIS AND FINDINGS Appeals to the Commission must be filed within 30 calendar days after Complainant receives notice of the Agency's final action, pursuant to 29 C.F.R. § 1614.402(a). Our regulations further provide that a document is deemed timely if it is delivered in person or postmarked before the expiration of the applicable filing period, or, in the absence of a legible postmark, if it is received by mail within five days of the expiration of the applicable filing period. According to the Agency, it issued the Dismissal and mailed it to Complainant on July 18, 2019. The USPS tracking record shows that the Dismissal was delivered to Complainant’s home address of record on July 22, 2019. A review of the Dismissal shows that it properly informed Complainant of the time limit for filing her appeal and the consequences for an untimely appeal. The Dismissal further notified Complainant that her appeal should be filed with this Commission, and it provided Complainant with the correct mailing address to enable her to do so. Instead, according to the Agency, following the issuance of the Dismissal, Complainant submitted a hearing request to the EEOC’s St. Louis District Office on July 31, 2019, but did not file her appeal until July 15, 2020, nearly one year after she received the Dismissal. The Commission has previously held that when provided with the proper address, filing at the wrong address does not constitute a proper filing. See Pacheco v. United States Postal Service, EEOC Request No. 05930700 (September 10, 1993) (appeal untimely when sent to wrong address despite receipt of proper instructions). We note that in her Appeal statement, Complainant recognizes that her complaint “was dismissed July 18, 2019 as a ‘collateral attack on another's forum’,” but does not explain her late filing of her appeal of that dismissal. Complainant’s appeal is DISMISSED as untimely filed. 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 2020004716 3 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). 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. 2020004716 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 March 8, 2021 Date