Season H.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency.

Equal Employment Opportunity Commission

Aug 16, 2019

2019003668 (E.E.O.C. Aug. 16, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Season H.,1
Complainant,

v.

Megan J. Brennan,
Postmaster General,
United States Postal Service
(Southern Area),
Agency.

Appeal No. 2019003668

Agency No. 4G-335-0123-18

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency's final decision dated July 11, 2018, dismissing a formal
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.

BACKGROUND

During the period at issue, Complainant worked as a Clerk at the Agency’s Clarcona Post Office
in Clarcona, Florida.

On April 2, 2018, Complainant initiated EEO Counselor contact. Informal efforts to resolve her
concerns were unsuccessful.

On June 22, 2018, Complainant filed the instant formal complaint. Complainant claimed that the
Agency subjected her to discrimination based on race when:

1. on April 16, 2016, she was issued a Notice of Removal for Improper Conduct/Failure to
Accurately Complete the PS Form 2591 “Application for Employment” and PS Form 61
“Appointment Affidavit;” and

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.
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2. on March 17, 2017, she was notified that an Arbitrator denied her grievance regarding the
Notice of Removal dated April 16, 2016.

In its July 11, 2018 final decision, the Agency dismissed claims 1 and 2 for untimely EEO
Counselor contact, pursuant to 29 C.F.R. § 1614.107(a)(2). Specifically, the Agency determined
that Complainant initiated EEO Counselor contact on April 2, 2018, which the Agency found
was more than forty-five days after the alleged discriminatory events occurred.

The Agency further dismissed claim 1 on the alternative grounds for stating the same claim that
was raised in her prior formal EEO complaint. The Agency found that Complainant raised the
same issue previously in a prior formal complaint identified as Agency Case No. 4G-335-0173-
16. The Agency also dismissed claim 2 on the alternative grounds of failure to state a claim

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 Equal Employment Opportunity Counselor within forty-five
(45) days of the date of the matter alleged to be discriminatory or, in the case of 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. Department of the Navy,
EEOC Request No. 05970852 (February 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.

The alleged discriminatory actions occurred on April 16, 2016 and March 17, 2017, but
Complainant did not initiate contact with an EEO Counselor until April 2, 2018, which was
beyond the 45-day limitation period. Complainant had or should have had a reasonable
suspicion of discrimination regarding her claims more than 45 days prior to her initial contact
with an EEO Counselor. Complainant has not presented any persuasive arguments or evidence
warranting an extension of the time limit for initiating EEO Counselor contact. See 29 C.F.R. §
1614.604(c). Moreover, we determine that the record contains sufficient documentation
reflecting Complainant had, at a minimum, constructive notice of the limitation period for timely
contacting an EEO Counselor. Therefore, the Agency properly dismissed the instant complaint
for untimely EEO Counselor contact.

The Agency’s final decision dismissing Complainant’s formal complaint for untimely EEO
contact is AFFIRMED.2

2 Because we affirm the Agency’s dismissal for the reason stated herein, we find it unnecessary
to address alternative dismissal grounds.
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STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or
the Agency submits a written request containing arguments or evidence which 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 to reconsider, with supporting statement or brief, must be filed with the Office of
Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party
shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in 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). All requests and arguments must be submitted to the
Director, Office of Federal Operations, Equal Employment Opportunity Commission.
Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC
20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a
legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail
within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The
agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal
(FedSEP). See 29 C.F.R. § 1614.403(g). The request or opposition must also include proof of
service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration
as untimely, unless extenuating circumstances prevented the timely filing of the request. Any
supporting documentation must be submitted with your 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
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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

August 16, 2019
Date