[Redacted], Randee D., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency.Download PDFEqual Employment Opportunity CommissionSep 27, 2021Appeal No. 2021003603 (E.E.O.C. Sep. 27, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Randee D.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 2021003603 Agency No. 4G-350-0012-21 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated May 10, 2021, 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Customer Service Supervisor, EAS-17, at the Agency’s Deatsville Post Office facility in Deatsville, Alabama. On January 24, 2021, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of religion and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964. The Agency, in its final decision, characterized the claims as follows: 1. Beginning on or about August 28, 2020 and ongoing, Complainant was always blamed when things went wrong in her work unit. 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. 2021003603 2 2. Beginning on or about August 28, 2020 and continuing, management has made numerous inappropriate religious remarks. 3. Beginning on or about August 28, 2020 and ongoing, Complainant was required to work over 40 hours a week, over 8 hours a day, 6 to 7 days a week. The Agency dismissed the complaint, pursuant to 29 C.F.R. §§ 1614.105(a)(1), 1614.107(a)(2) for untimely EEO counselor contact. The instant appeal followed. ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the EEO counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of a personnel action within 45 days of the effective date of the action. Upon review, we find that the Agency incorrectly framed the complaint to involve incidents starting on August 28, 2020. On the face of her formal complaint, Complainant alleged ongoing harassment starting in 2018. Although Complainant does not provide an end date in the formal complaint, an Inquiry Report reveals that Complainant told her EEO counselor that the last date of harassment was August 28, 2020. (4G-350-0012-21, p. 63). We note that the Agency has alleged that Complainant stopped working on August 22, 2020. Although timesheets in the record support that Complainant went on extended leave in August 2020, the exact date that she stopped working is unclear (4G-350-0012-21, pp. 381-414). Regardless, we find that the record is sufficient to support a finding that the time limit for initiating contact with an EEO counselor began to run on August 28, 2020, since Complainant reported that this was the last date of harassment. Consequently, Complainant had 45 days from August 28, 2020, to request EEO counseling. According to the Inquiry Report, Complainant contacted an EEO counselor on October 19, 2020, which was after the 45 days had lapsed. On appeal, Complainant does not argue that she contacted an EEO counselor within the 45-day time limit. Rather, Complainant argues that she was unable to timely pursue her claim because she was confused and sick. The record contains medical documentation of Complainant’s mental and physical condition, including a Family Medical Leave Act (FMLA) form that that Complainant’s primary care physician (PCP) completed on August 14, 2020, representing that Complainant suffers from syncope and hypokalemia, and was incapacitated from August 3, 2020 to August 5, 2020. The record also includes intake notes from a clinical psychologist who evaluated Complainant on August 28, 2020. The intake notes state that Complainant “told her primary care physician that she couldn’t go back to work, and he completed the form excusing the absence.” Subsequent medical records dated in September 2020 indicate that Complainant reported feeling better and her anxiety and stress were better. 2021003603 3 When a complainant claims that physical or mental health difficulties prevent them from meeting a deadline, the Commission has consistently held that an extension is warranted only where a complainant is so incapacitated by their condition that they are unable to meet regulatory time limits. See Davis v. United States Postal Service, EEOC Request No. 05980475 (August 6, 1998). Although Complainant argues that her mental and/or physical problems warrant an extension, we find that she has not established that she was so incapacitated that she was unable to meet the regulatory time limit. CONCLUSION Accordingly, the Agency's final decision dismissing Complainant's 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). 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). 2021003603 4 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. 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 27, 2021 Date Copy with citationCopy as parenthetical citation