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

Equal Employment Opportunity Commission

Oct 30, 2019

2019004913 (E.E.O.C. Oct. 30, 2019)

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

Malinda F,1
Complainant,

v.

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

Appeal No. 2019004913

Agency No. 1G-391-0007-19

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency's decision dated May 21, 2019, dismissing 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., 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 a former Mail Processing
Clerk, PS-6, at the Agency’s Jackson Processing and Distribution Center facility in Jackson,
Mississippi.

Complainant made EEO contact on February 15, 2019. On May 2, 2019, Complainant filed a
formal complaint alleging that the Agency subjected her to discrimination on the bases of race,
color, disability, and reprisal for prior protected EEO activity when, on February 11, 2019, she
tried to return to work following an extended absence and was informed that she had been
terminated months before in 2018. Complainant asserted she never received any notice of the
termination.

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.
2019004913

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The record contains a Notification of Personnel Action indicating Complainant’s employment
was terminated effective July 3, 2018. The record also indicates that the removal was initiated
on November 7, 2017. Shortly thereafter, Complainant filed a union grievance (Grievance
No.18034726) regarding the removal. The union and management negotiated a resolution of the
grievance over the removal by allowing Complainant the opportunity to resign within 60 days of
the settlement (executed on May 4, 2018). The rescission of the 2018 removal was contingent on
Complainant’s resignation. However, Complainant did not resign.

Instead, Complainant sought EEO counseling concerning the removal (identified as Agency No.
1G-391-0017-18). Complainant was issued a notice of right to file a formal complaint, but
Complainant failed to timely file the formal complaint. The Agency stated that it closed the
matter in October 2018, after Complainant did not timely file a formal complaint after receiving
the notice of right to file.

In February 2019, Complainant again sought EEO counseling on the termination and this time
filed a formal complaint (identified as Agency No. 1G-391-0007-19). The Agency dismissed the
complaint (resulting in the instant appeal), concluding that Complainant failed to initiate contact
with an EEO Counselor within 45 days of the 2018 termination decision. Agency reasoned that
Complainant was requesting counseling seven months after the July 3, 2018 effective date of the
termination. In addition, the Agency noted that Complainant was aware of the adverse action
because Complainant had previously filed a grievance regarding her termination.

This appeal followed. On appeal, Complainant maintains that her EEO contact was timely made
because she claims that she first became aware of her termination on February 13, 2019, and that
she made timely EEO contact on February 13 and 22, 2019. Alternatively, she asserts that time
limitations should be waived because she “can demonstrate good cause for any untimely filing,”
because she was under a lot of stress at the time.

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.

We find that the record supports the Agency’s contention that Complainant’s current claim was
untimely raised. While Complainant asserts she did not know about her termination until
February 2019, the record shows that she had filed a union grievance over the termination, which
was settled with the agreement that she would resign. However, she failed to resign, and instead
sought EEO counseling on the matter in 2018. This matter was closed in October 2018, after
Complainant did not file a formal complaint after receiving the notice of right to file. Therefore,
we conclude that there is ample support for the Agency’s contention that Complainant failed to
initiate EEO counselor contact on the instant complaint within 45 days of the date she learned of
her removal and reasonably suspected discrimination.
2019004913

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Once a complainant has withdrawn an informal complaint, absent a showing of coercion, the
complainant may not reactivate the EEO process by filing a formal complaint on the same issue.
See Allen v. Department of Defense, EEOC Request No. 05940168 (May 25, 1995).

On appeal, Complainant has presented no persuasive arguments or evidence warranting an
extension of the time limit for initiating EEO counselor contact.

CONCLUSION

Accordingly, we AFFIRM the Agency's Final Decision dismissing Complainant's complaint.

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 tends 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).
2019004913

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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

October 30, 2019
Date