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

Equal Employment Opportunity Commission

Sep 27, 2019

2019004455 (E.E.O.C. Sep. 27, 2019)

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

Carleen L.,1
Complainant,

v.

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

Appeal No. 2019004455

Agency No. 4G-752-0076-19

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency’s decision dated March 8, 2019, 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 City Carrier at an Agency Post Office in
Irving, Texas.

On December 31, 2018, Complainant initiated EEO Counselor contact. The parties did not resolve
the matter informally.

On February 5, 2019, Complainant filed a formal complaint alleging that the Agency subjected
her to discrimination based on race, sex, and in reprisal for prior protected EEO activity when, on
or about September 15, 2018, Complainant was issued a Notice of Removal.

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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On March 8, 2018, the Agency issued the instant final decision. The Agency dismissed the formal
complaint for untimely EEO Counselor contact, pursuant to 29 C.F.R. § 1614.107(a)(2).
Specifically, the Agency found that it had delivered the termination notice to Complainant on
September 26, 2018. The Agency reasoned Complainant’s December 13, 2018 initial EEO
Counselor contact occurred over 90 days after it had provided Complainant with constructive
notice of her separation.

The instant appeal followed. On appeal and through counsel, Complainant argues that the
Agency’s EEO office intentionally obfuscated delivery dates to render untimely Complainant’s
EEO Counselor contact on December 31, 2018. Counsel for Complainant asserts that Complainant
did not receive notice of the Agency’s removal action until November 16, 2018, because
Complainant was homeless. Complainant’s legal representative noted the omission of a single
digit in the tracking number in the final decision. Complainant also questions the absence of a
signature confirmation associated with the correct tracking number. Complainant further asserts
that the Agency retaliated against her for a myriad of reasons including that she had reported
managers had subjected her to sexual harassment, because she had witnessed another employee
tampering with the mail, and because she was involved in altercations with coworkers.

ANALYSIS AND FINDINGS

EEOC Regulation 29 C.F.R. §1614.107(a)(2) states an agency shall dismiss a complaint that fails
to comply with applicable time limits contained in §1614.105. Under 29 C.F.R. §1614.105(a)(1),
an aggrieved person must initiate contact with an EEO Counselor within 45 days of the date of the
matter alleged to be discriminatory or, in the case of a personnel action, within 45 days of the
effective date of the action. If a complainant can establish that she was unaware of the time limit,
did not reasonably know that the discriminatory matter or personnel action had occurred, that there
where circumstances beyond her control which prevented her from contacting an EEO Counselor
timely, or for other sufficient reasons, then EEOC or the Agency shall extend the time limit in
accordance with 29 C.F.R. 1614.105(a)(2).

Here, the Agency dismissed Complainant’s for untimely EEO Counselor under 29 C.F.R.
§ 1614.107(a)(2). We have consistently held the Agency must carry the burden of providing
evidence to support procedural decisions based upon timeliness. Guy v. Dep’t of Energy, EEOC
Request No. 05930703 (Jan. 4, 1994). Based upon the record before us, we determine that the
Agency failed to do so here. We note further that the Agency stated it received constructive notice
of removal on September 26, 2018, that the effective removal date was October 24, 2018, but that
the removal was not processed until November 8, 2018. The evidence of record simply did not
establish a trigger date for Complainant’s 45-day time limit to initiate EEO Counselor contact.

CONCLUSION

The Agency’s final decision dismissing the formal complaint for untimely EEO contact is
REVERSED. The formal complaint is REMANDED to the Agency for further processing in
accordance with the ORDER below.
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ORDER (E1016)

The Agency is ordered to process the remanded claim in accordance with 29 C.F.R. § 1614.108 et
seq. The Agency shall acknowledge to Complainant that it has received the remanded claim
within thirty (30) calendar days of the date this decision was issued. The Agency shall issue to
Complainant a copy of the investigative file and also shall notify Complainant of the appropriate
rights within one hundred fifty (150) calendar days of the date this decision was issued, unless
the matter is otherwise resolved prior to that time. If Complainant requests a final decision without
a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of
Complainant’s request.

A copy of the Agency’s letter of acknowledgment to Complainant and a copy of the notice that
transmits the investigative file and notice of rights must be sent to the Compliance Officer as
referenced below.

IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719)

Under 29 C.F.R. § 1614.405(c) and §1614.502, compliance with the Commission’s corrective
action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective
action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents
in the digital format required by the Commission, referencing the compliance docket number under
which compliance was being monitored. Once all compliance is complete, the Agency shall
submit via FedSEP a final compliance report in the digital format required by the Commission.
See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation
when previously not uploaded, and the Agency must send a copy of all submissions to
Complainant and his representative.

If the Agency does not comply with the Commission’s order, Complainant may petition the
Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). Complainant also has the
right to file a civil action to enforce compliance with the Commission’s order prior to or following
an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R.
§ 1614.503(g). Alternatively, Complainant has the right to file a civil action on the underlying
complaint in accordance with the paragraph below entitled “Right to File a Civil Action.” 29
C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the
underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV
1999). If Complainant files a civil action, the administrative processing of the complaint,
including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409.

Failure by an agency to either file a compliance report or implement any of the orders set forth in
this decision, without good cause shown, may result in the referral of this matter to the Office of
Special Counsel pursuant to 29 CFR § 1614.503(f) for enforcement by that agency.

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STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0617)

The Commission may, in its discretion, reconsider the decision in this case if 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 Ch. 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 (R0610)
This is a decision requiring the Agency to continue its administrative processing of your complaint.
However, if you wish to file a civil action, you have the right to file such action in an appropriate
United States District Court within ninety (90) calendar days from the date that you receive this
decision. In the alternative, you may file a civil action after one hundred and eighty (180)
calendar days of the date you filed your complaint with the Agency, or filed your appeal with the
Commission. 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.
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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. 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
Carlton M. Hadden, Director
Office of Federal Operations

September 27, 2019
Date