[Redacted], Breanne S., 1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Western Area), Agency.

Equal Employment Opportunity Commission

Mar 4, 2020

Appeal No. 2020001368 (E.E.O.C. Mar. 4, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Breanne S.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Western Area), Agency. Appeal No. 2020001368 Agency No. 4E800016518 DECISION Complainant timely appealed with the Equal Employment Opportunity Commission (“EEOC” or “Commission”) from the Agency's October 28, 2019, dismissal of 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 the Age Discrimination in Employment Act of 1967 (“ADEA”), as amended, 29 U.S.C. § 621 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Postal Support Employee (“PSE”), PS-6, at Eagleview Station, located in Broomfield, Colorado. On October 4, 2019, Complainant filed a formal complaint alleging that the Agency subjected her to a hostile work environment/harassment on the bases of sex (female) and age (60) when: 1. from July 2018 through November 2018, she was sexually harassed, including inappropriate comments and touching, by a coworker, and when she reported the harassment, management failed to take appropriate action; 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. 2020001368 2 2. on October 12, 2018, she overheard a manager call her a "bitch" and accuse her of lying about an incident in September 2018. On September 4, 2018, Complainant initiated contact with an EEO Counselor about the alleged harassment. She submitted statements from coworkers as supporting evidence, along with the signed Pre-Complaint form, acknowledging that she read the “what you need to know about EEO” information sheet regarding the EEO process on September 8, 2018. In November 2018, Complainant transferred to a postal facility in California (an effort to get away from the harassment), and several months later obtained a position at another facility in Oregon. Meanwhile, on or about November 15, 2018, the Agency mailed Complainant her Notice of Right to File a formal complaint (“NRTF”) to the address Complainant provided on her Pre-Complaint form. The NRTF was returned to the Agency with a “return to sender, no forwarding address” sticker attached. On September 24, 2019, Complainant’s recently retained attorney contacted the Agency requesting an update on the status of Complainant’s EEO complaint. The Agency responded by sending a copy of the November 15, 2018 NRTF, which Complainant and her attorney received on September 30, 2019. Complainant, through her attorney, filed a formal complaint on or about October 4, 2019. The Agency dismissed the complaint, pursuant to 29 C.F.R. § 1614.107(a)(2), due to the untimely filing of the formal complaint. The instant appeal followed. ANALYSIS AND FINDINGS Under 29 C.F.R. §1614.106(b) a written complaint must be filed with the agency that allegedly discriminated against the complainant within fifteen (15) calendar days after the date of receipt of the Notice of Right to File an Individual Complaint required by 29 C.F.R. §1614.105(d), (e), or (f). A complaint is deemed timely if it is received or postmarked before the expiration of the applicable filing period. This time limit is subject to waiver, estoppel, and equitable tolling. 29 C.F.R. §1614.604(c). An agency shall dismiss a complaint which is not filed within the fifteen day time period. See 29 C.F.R. §1614.107(a)(2). On appeal, Complainant argues that she did not receive the Notice until September 30, 2019, therefore her complaint, filed on October 4, 2019 is timely. Evidence in the record establishes that on or about November 15, 2018, the Agency mailed Complainant’s Notice to the address she provided on her Pre-Complaint Counseling form. The Notice was returned unopened with a “return to sender, no forwarding address” sticker. Complainant failed to notify the EEO Office of her change of address and did not exercise due diligence in proceeding her complaint, as she waited nearly a year to follow up. 2020001368 3 Complainant explains that she was unaware that she should expect the NRTF as part of the EEO process, and she assumed her address was up to date, as she had updated HR, and received paychecks from the Agency by mail. The record evidence supports that Complainant was placed on notice regarding the EEO process. Complainants have a duty to apprize the Agency of address changes and other circumstances that may affect the processing of EEO complaints. Reinbold v. United States Postal Serv., EEOC Appeal No. 0120050087 (Feb. 3, 2005); see, e.g., Virgilio C. v. Dep’t of Agriculture, EEOC Appeal No. 0120172762 (Jun. 28, 2018) (affirming an administrative judge’s dismissal without a hearing “due to no contact with Complainant” where, during the relevant time frame, Complainant was deployed to fight a wildfire remote area, with minimal phone and email communication, and failed to notify the Agency and AJ of his deployment). Moreover, at all times, the complainant is responsible for proceeding the complaint whether or not a representative has been designated. See 29 C.F.R. §1614.605(e). To the extent Complainant failed to exercise due diligence (the record is devoid of evidence that Complainant made any EEO contact regarding the status of her complaint between September 2018 and September 2019), she appears to alternately argue for an extension based on incapacitation, explaining that she was struggling with PTSD during the relevant time frame. The Commission has held that a complainant's failure to meet a filing deadline (or in this instance delay filing through lack of due diligence) will be excused for incapacitation only if the complainant establishes that she was so physically or emotionally incapacitated that she was unable to make a timely filing. See Zelmer v. United States Postal Serv., EEOC Request No. 05890164 (Mar. 9, 1989) and Hedgepath v. United States Postal Serv., EEOC Request No. 05940478 (Jan. 6, 1995). Claims of incapacity must be supported by medical evidence of incapacity. See Crear v. United States Postal Serv., EEOC Request No. 05920700 (Oct. 29, 1992). Evidence that a complainant has sought treatment does not, without evidence of incapacity, justify an extension of time. See Galbreath v. Navy, EEOC Request No. 05980927 (Nov. 4, 1999) (evidence that complainant was under great mental stress, and received an evaluation/treatment, did not render the complainant incapacitated). Complainant provides a testimonial from her counselor describing the impact of her PTSD on her day to day life and career. However, nothing in that document, or Complainant’s statements on appeal, indicates that she was so incapacitated that she could not contact the EEO Office between November 2018 and September 2019. Complainant was capable of working during this time, indicating that she was capable of contacting the EEO Office with a change of address or update request long before she finally did. Complainant has not offered adequate justification for extending the filing period. CONCLUSION Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED. 2020001368 4 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 file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint. 2020001368 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 March 4, 2020 Date