[Redacted], Faustina L., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency.

Equal Employment Opportunity Commission

May 25, 2022

Appeal No. 2022002274 (E.E.O.C. May. 25, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Faustina L.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. Appeal No. 2022002274 Agency No. 1C-731-0015-22 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision, dated February 15, 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. The Commission accepts the appeal in accordance with 29 C.F.R. § 1614.405. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Supervisor of Maintenance Operations, EAS-17, at the Agency’s Dallas Network Distribution Center in Dallas, Texas. On January 25, 2022, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of race (Caucasian), sex (female), color (White), disability (mental), age (YOB: 1973) when: 1. Beginning on or about September 28, 2021, and ongoing, her Manager continues to talk down to her and send harassing emails. 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. 2022002274 2 2. Beginning on or about September 28, 2021, and continuing, her request(s) for leave were denied. 3. Beginning in 2021 (3rd quarter), December 2021 and ongoing, management has allowed co-workers to leave harassing items that include profanity on her desk. 4. Beginning on or about November 1, 2021, and ongoing, her request for Sick Leave was not granted and she was charged Leave Without Pay (LWOP). 5. On or about January 14, 2022, the Agency issued a subpoena duces tecum to her brokerage requesting all her real estate transactions. In a decision dated February 15, 2022, the Agency dismissed the complaint as untimely filed, pursuant to 29 C.F.R. § 1614.107(a)(2). It reasoned that Complainant received the Notice of Right to File a Formal Complaint (“Notice”) on January 8, 2022, but did not file her complaint until January 25, 2022, one day beyond the fifteen-day time limitation. In addition, it submitted, although Complainant did not claim she was unaware of the time limit, the record contained an affidavit attesting to the fact that an EEO poster is appropriately displayed at her facility. In addition, the Agency maintained, Complainant was aware of the deadlines as she had filed at least two prior EEO claims. CONTENTIONS ON APPEAL On appeal, Complainant, through her attorney, argues that the Agency erroneously used the date the Notice was purportedly delivered to Complainant’s residence to calculate timeliness rather than the date of receipt by her attorney. Additionally, Complainant submits that tracking information for the Notice sent to Complainant’s counsel shows the Notice was delivered on January 8, 2022, a Saturday. Complainant argues that since the beginning of the fifteen-day time limit was a Saturday, “the clock started ticking” on Monday, January 10, 2022. Consequently, with January 10, 2022, as the starting date, Complainant argues that the formal complaint was due by January 25, 2022. Since her complaint was postmarked January 25, 2022, it was timely filed. Complainant argues the dismissal should be reversed and remanded for further processing. The Agency submitted no brief on appeal. ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R. § 1614.106(b) requires the filing of a complaint with an appropriate agency official within fifteen (15) calendar days after receipt of the notice of the right to file a formal complaint. 29 C.F.R. § 1614.107(a)(2) provides that the agency shall dismiss 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). 2022002274 3 In cases where the complainant designates an attorney as representative, service of all official correspondence shall be made on the attorney and the complainant, but time frames for receipt of the materials shall be computed from the time of receipt by the attorney. 29 C.F.R. § 1614.605(d). Here, the record establishes that the Notice was delivered to Complainant's and her attorney’s respective addresses of record, and signed for, on January 8, 2022. Complainant’s attorney erroneously asserts that 29 C.F.R. § 1614.604(d) provides that when the start of a time period is a Saturday, Sunday, or federal holiday, the beginning is delayed until the next calendar day. Rather, the regulation applies to the “last day” of the time period, not the starting date. Consequently, to be considered timely filed the complaint was due on January 24, 2022. Based upon the January 8, 2022 receipt, the fifteen-day time limit expired on Sunday, January 23, 2022. Applying 29 C.F.R. 1614.604(d), the time limit was extended to the next business day: Monday, January 24, 2022. As noted above, the complaint was filed on January 25, 2022. Therefore, Complainant’s filing was one day beyond the time limit. She has failed to provide adequate justification to extend or toll the time limit. See 29 C.F.R. § 1614.604(c). CONCLUSION Accordingly, we AFFIRM the Agency’s final decision. 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 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). 2022002274 4 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. 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. 2022002274 5 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 May 25, 2022 Date