[Redacted], Wilda M., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Northeast Area), Agency.

Equal Employment Opportunity Commission

Jan 27, 2021

Appeal No. 2021001197 (E.E.O.C. Jan. 27, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Wilda M.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Northeast Area), Agency. Appeal No. 2021001197 Agency No. 1B-112-0015-20 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from an Agency decision, dated October 29, 2020, pertaining to 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. The Commission accepts the appeal in accordance with 29 C.F.R. § 1614.405. BACKGROUND During the relevant time, Complainant worked as an Automation Clerk, with a modified assignment, at the Agency’s Brooklyn Processing & Distribution Center in New York. In approximately 2015, Complainant’s manager (hereinafter “Manager-B”) purportedly informed the Light-Limited-Duty employees that their tour, Tour-1, was abolished. Complainant, and the other Light-limited-Duty employees, were taken off their Tour-1 bid assignments and moved to Tour- 3.2 When new management (“Manager-M”) took over Tour-3, on December 6, 2019, Complainant was returned to the Tour-1 bid. 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 Consequently, the start time changed from 10 p.m. to 6 p.m. 2021001197 2 In June 2020, when Complainant’s Union Representative returned to work, he asked Complainant when she returned to Tour-1. She explained to him that she had been on Modified Assignment to Tour-3 for the past four years. It was at that time, through the union representative that Complainant learned that Tour-1 had not been abolished as reported by Manager-B. Believing that she was subjected to discrimination based on her sex (female), age, disability (back, legs), and in reprisal for her prior protected EEO activity, Complainant contacted an EEO Counselor on June 30, 2020. Informal efforts to resolve Complainant’s concerns were unsuccessful. Subsequently, on October 7, 2020, Complainant filed a formal complaint. The Agency framed the claim as follows: On December 6, 2019, Complainant learned that management changed her bid hours in 2015, from 10 p.m. to 6 p.m., and falsely advised her that her bid assignment was abolished. In its October 29, 2020 decision, the Agency dismissed the complaint for untimely counselor contact. The Agency reasoned that Complainant alleged she became aware of the discrimination on December 6, 2019, but did not contact the EEO Counselor until approximately seven months later, on June 30, 2020. Further, the Agency found that Complainant was aware of the time limits because she had previously filed an EEO complaint (Case No. 1G-731-0018-14). Complainant filed the instant appeal. 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 Equal Employment Opportunity Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five (45) days of the effective date of the action. The Commission has adopted a "reasonable suspicion" standard (as opposed to a "supportive facts" standard) to determine when the forty-five (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. On appeal, Complainant argues that she did not become aware of the alleged discrimination in December 2019, as stated in the Agency decision, but “around June [2020]” when the union representative returned to the facility. According to Complainant, it was only after learning through their conversation that Tour-1 had not been abolished, that she suspected discrimination and contacted the EEO Counselor. Here, Complainant was removed from Tour-1 (10 p.m. start time) and placed on Tour-3 (6 p.m. start time) in 2015. 2021001197 3 According to Complainant, she worked in the assignment for approximately four years and did not suspect discrimination until a June 2020 conversation with a union representative. However, we find that Complainant should have reasonably suspected discrimination more than forty-five days before her June 30, 2020 counselor contact. The Agency’s decision to dismiss the complaint pursuant to 29 C.F.R. 1614.107(a)(2) was proper. CONCLUSION The Agency’s decision is hereby 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). 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. 2021001197 4 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 January 27, 2021 Date