[Redacted], Rosendo F., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency.

Equal Employment Opportunity Commission

Jun 3, 2021

Appeal No. 2021002186 (E.E.O.C. Jun. 3, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Rosendo F.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 2021002186 Agency No. 1G-321-0098-20 DECISION Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from an Agency decision, dated January 19, 2021, pertaining to 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. The Commission accepts the appeal in accordance with 29 C.F.R. § 1614.405. BACKGROUND During the relevant time, Complainant worked for the Agency as a Mail Handler in Jacksonville, Florida. Believing that she was subjected to unlawful retaliation for her prior protected EEO activity, After Complainant contacted an EEO Counselor, informal efforts to resolve Complainant’s concerns were not successful. On December 29, 2020, Complainant filed a formal complaint alleging unlawful retaliation for engaging in prior protected activity. On January 19, 2021, the Agency issued a final decision dismissing the formal complaint on the grounds that it was untimely filed. According to the Agency, the Notice of Right to File Individual Complaint (hereinafter “Notice”) was received at Complainant’s address of record on 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. 2021002186 2 December 12, 2020, “via current COVID-19 regulations.” Fifteen days from receipt was December 27, 2020, a Sunday. The Agency therefore reasoned that in order for the formal complaint to be timely filed, it was due by Monday, December 28, 2020. The postmark on the formal complaint, however, is December 29, 2020. Complainant filed the instant appeal. On appeal, Complainant’s non-attorney representative contends that he had a “family medical emergency in Richmond, VA. Due to COVID-19 restrictions, navigating the process for nursing home health care for my parent far exceeded my anticipated stay and beyond my control. Upon my return back to my home state of Florida on December 27, 2020, I prepared and submitted documents on December 28, 2020.” ANALYSIS AND FINDINGS The record discloses, and Complainant does not dispute, that she received the Notice on December 12, 2020.2 Although the Notice indicated that Complainant had to file a formal complaint within fifteen (15) calendar days of its receipt, Complainant did not file her formal complaint until December 29, 2020, which is one day beyond the limitation period. Although Complainant’s non-attorney3 representative argues that he was out of town until December 27, 2020, timeliness in this case is based upon Complainant’s receipt of the Notice. 29 C.F.R. 1614.605(d) provides that after an Agency has received written notice that the complainant is represented by an attorney, service of all correspondence shall be made on the attorney and complainant, “but time frames for receipt of materials shall be computed from the time of receipt by the attorney”(emphasis added). Therefore, Complainant has not provided sufficient justification to warrant an extension of the time limit for filing the complaint. CONCLUSION The Agency's final decision dismissing the formal complaint is AFFIRMED. 22 “USPS Tracking Intranet” reflects that the Notice was “Delivered. Left with Individual” on December 12, 2020 at Complainant’s address of record. Due to the pandemic, the signature box bore the word “COVID” instead of a signature. 3 The “EEOC Contact Summary” included the contact information for Complainant’s representative. In response to the question: “Is your representative an attorney?” the answer provided was “No”. Further, in her appeal form Complainant identified her representative as a non-attorney. 2021002186 3 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). 2021002186 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 June 3, 2021 Date