[Redacted], Tim H., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity Commission

Sep 23, 2021

Appeal No. 2021004024 (E.E.O.C. Sep. 23, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Tim H.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service, Agency. Appeal No. 2021004024 Agency No. 4C-190-0133-20 DISMISSAL OF APPEAL On July 2, 2021, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a June 3, 2021 final Agency decision (FAD) dismissing his complaint alleging 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 events giving rise to this complaint, Complainant was employed by the Agency as a City Carrier Assistant at the Morrisville Pennsylvania Post Office. On December 2, 2020, Complainant filed an equal employment opportunity (EEO) complaint alleging that the Agency discriminated against him based on his disability (neck injury & concussion) and age (54) when instead of excusing his absence while he was medically restricted from work, on January 29, 2020, it terminated him.2 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. 2 After reviewing Complainant’s EEO complaint and his EEO affidavit, we modified the Agency’s definition of Complainant’s complaint to better capture his claim. The Agency defined the complaint in terms of Complainant: (1) on or around January 27, 2020, not being 2021004024 2 After partly completing an EEO investigation, the Agency dismissed Complainant’s complaint because per the procedural requisites in 29 C.F.R. § 1614.107(a)(7), he failed to cooperate by not submitting an EEO investigative affidavit. The instant appeal followed. On appeal, via his attorney, Complainant explains that after being given extensions he submitted his affidavit two days late because his recovery from contracting the COVID-19 coronavirus went slower than expected. He requested the Agency’s dismissal be vacated. While Complainant’s appeal was pending, on July 22, 2021, the Agency rescinded its FAD. Because the FAD which Complainant appealed is rescinded, his appeal is DISMISSED.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). accommodated per his medical restrictions when he was not permitted to return to work, and (2) being informed on July 30, 2020, that he was terminated. 3 On July 30, 2021, the Agency issued a FAD finding no discrimination. We take administrative notice that on September 3, 2021, via his attorney, Complainant filed civil action 2:21-cv-03962 in the United States District Court for the Eastern District of Pennsylvania alleging the Agency discriminated against him based on disability and age when he was terminated, and reprisal for protected EEO activity under the Americans with Disabilities Act when actions were taken against him, including but not limited to his termination. Exhibits to the civil action complaint included his January 29, 2020 notice of separation, his December 2, 2020 EEO administrative complaint, and the July 30, 2021 FAD. 2021004024 3 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. 2021004024 4 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 23, 2021 Date