Wayne C.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Western Area), Agency.

Equal Employment Opportunity Commission

Dec 19, 2019

2020000250 (E.E.O.C. Dec. 19, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Wayne C.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Western Area), Agency. Appeal No. 2020000250 Agency No. 4E-852-0111-19 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from an Agency decision, dated August 15, 2019, pertaining to his 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. The Commission accepts the appeal in accordance with 29 C.F.R. § 1614.405. BACKGROUND During the relevant time, Complainant worked as a Post Master at the Agency’s Coolidge Post Office facility in Coolidge, Arizona. Complainant applied for a Post Master position at Queen Creek, Arizona. According to Complainant he received an email, on March 18 or 19, 2019, informing him of his non-selection. On March 21 or 22, 2019, Complainant contacted one of the selecting board members to inquire about his application. He learned that he received a score of zero on several KSAs. Believing that the Agency’s actions were discriminatory, Complainant contacted an EEO Counselor on May 4, 2019. 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. 2020000250 2 Informal efforts to resolve Complainant’s concerns were unsuccessful. Subsequently, Complainant filed a formal complaint based on race (not specified) and sex (male).2 The Agency framed the claim as follows: 1. On March 18 or March 19, 2019, Complainant received an email of non- selection for the Postmaster position at Queen Creek, Arizona. The Agency dismissed the complaint for untimely counselor contact. According to the Agency, relying upon the later date of March 19, 2018, Complainant’s contact was one day beyond the forty-five day time limitation. The Agency reasoned that, although Complainant contacted a board member to inquire about his non-selection on March 21 or 22, 2019, he reasonably suspected discrimination when he was notified days earlier on March 19, 2018. Complainant filed the instant appeal. On appeal he argues that his contact was in fact “two days early”, because he did not become aware of the discriminatory conduct (i.e. the Board’s failure to consider his entire application) until he spoke with a Board member on March 21 or 22, 2018. 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. EEOC Regulations provide that the agency or the Commission shall extend the time limits when the individual shows that she was not notified of the time limits and was not otherwise aware of them, that she did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence she was prevented by circumstances beyond her control from contacting the Counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission. The instant record reveals that the allegedly discriminatory event, the non-selection, occurred on March 19, 2018, when Complainant states he was informed by email of his non-selection. The evidence indicates that Complainant reasonably suspected, or should have, at that time. His contact with a Board member, days later, were an effort to obtain supportive facts. Therefore, timely contact would have to occur by May 3, 2019. 2 The Counselor’s Report notes that while Complainant identified race and sex in his formal complaint, during counseling Complainant raised the bases of race and age. 2020000250 3 Complainant did not, however, contact the EEO Counselor until a day later, on May 4, 2019. We do not find that Complainant has presented sufficient justification for extending or tolling the forty-five day time limitation. CONCLUSION Accordingly, the Agency's final decision dismissing Complainant's complaint is hereby AFFIRMED. 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). 2020000250 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 December 19, 2019 Date