[Redacted], Aline A., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity Commission

Apr 11, 2022

Appeal No. 2022001742 (E.E.O.C. Apr. 11, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Aline A.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service, Agency. Appeal No. 2022001742 Agency No. 4E-852-0187-21 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated January 14, 2022, 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. Upon review, the Commission finds that Complainant's complaint was properly dismissed for untimely EEO Counselor contact and failure to state a claim. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Labor Custodian at the Agency’s facility in Albuquerque, New Mexico. In August 2020 and on, Complainant was required to travel for work in her personal vehicle. On or about July 19, 2021, as a result of the grievance process, Complainant began getting travel reimbursement. On September 23, 2021, Complainant initiated EEO Counselor contact. On December 20, 2021, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination based on sex (female) when from August 2020 and on, she was not reimbursed for travel. On January 14, 2022, the Agency issued a final decision dismissing the complaint. The Agency determined that the issue of travel reimbursement began in August 2020, but that Complainant 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. 2022001742 2 did not contact an EEO Counselor until September 23, 2021. The Agency determined that this was clearly outside of the 45-day time frame limitation for timely EEO Counselor contact. Therein, the Agency dismissed the formal complaint on the grounds of untimely EEO counselor contact, pursuant to 29 C.F.R. § 1614.107(a)(2). Additionally, the Agency determined that the claim was lodging a collateral attack on the proceedings of another forum, specifically the grievance process, and therefore failed to state a claim pursuant to 29 C.F.R. § 1614.107(a)(1). CONTENTIONS ON APPEAL On appeal, Complainant acknowledges that the issue of her travel reimbursement has been ongoing for over a year. However, she asserts that she operated under the belief that the Agency was going to reimburse the entirety of her travel expenses. Complainant also discusses concerns regarding her July 19, 2021 grievance settlement. The Agency did not issue an appellate statement. ANALYSIS AND FINDINGS Untimely EEO Counselor Contact EEOC Regulation 29 C.F.R. §1614.107(a)(2) states that the Agency shall dismiss a complaint or a portion of a complaint that fails to comply with the applicable time limits contained in §1614.105, §1614.106 and §1614.204(c), unless the Agency extends the time limits in accordance with §1614.604(c). EEOC Regulation 29 C.F.R. §1614.105(a)(1) provides that 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. EEOC Regulation 29 C.F.R. §1614.105(a)(2) allows the Agency or the Commission to extend the time limit if Complainant can establish that Complainant was not aware of the time limit, that Complainant did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence complainant was prevented by circumstances beyond her control from contacting the EEO Counselor within the time limit, or for other reasons considered sufficient by the Agency or Commission. In this matter Complainant was aware that she was not receiving travel related expenses from August 2020 and on. However, she did not contact an EEO Counselor until September 23, 2021. Complainant asserted that she waited this duration because she believed she was going to be compensated eventually. Complainant has not asserted that she was unaware of the EEO complaint process, or the necessity for contacting an Agency EEO counselor within 45-days of the alleged discriminatory event. Instead, Complainant argues that she essentially could not have reasonably developed suspicions until after her grievance settlement. We are not persuaded. 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. Howard v. 2022001742 3 Dep't. of the Navy, EEOC Request No. 05970852 (Feb. 11, 1999). Thus, the time limitation is not triggered until Complainant reasonably suspects discrimination, but before all the facts that support a charge of discrimination have become apparent. Moreover, the Commission has consistently held that utilization of internal agency procedures, such as union grievances, and other remedial processes does not toll the time limit for contacting an EEO Counselor. See Kramer v. United States Postal Service, EEOC Appeal No. 01954021 (October 5, 1995); Williams v. United States Postal Service, EEOC Request No. 05910291 (April 25, 1991); Ellis v. United States Postal Service, EEOC Request No. 01992093 (Nov. 29, 2000). Here, Complainant waited past reasonable suspicion to seek counseling. We therefore AFFIRM the Agency's dismissal of the complaint pursuant to 29 C.F.R. §1614.105(a)(2). Failure to State a Claim The regulation set forth at 29 C.F.R. § 1614.107(a)(1) provides, in relevant part, that an Agency shall dismiss a complaint that fails to state a claim. An agency shall accept a complaint from any aggrieved employee or applicant for employment who believes that he or she has been discriminated against by that agency because of race, color, religion, sex, national origin, age or disabling condition. 29 C.F.R. §§ 1614.103, .106(a) The Commission’s federal sector case precedent has long defined an “aggrieved employee” as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Diaz v. Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994). Collateral attacks to other administrative proceedings fail to state a claim. See Wills v. Department of Defense, EEOC Request No. 05970596 (July 30, 1998). On appeal, Complainant discussed concerns of her July 19, 2021 grievance settlement. The EEO process is not the appropriate venue for this. Complainant should raise her concerns with the grievance process itself. CONCLUSION Accordingly, the Agency’s final decision dismissing the formal complaint for untimely EEO Counselor contact and failure to state a claim is 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 2022001742 4 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. 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. 2022001742 5 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 April 11, 2022 Date