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

Equal Employment Opportunity Commission

Aug 15, 2022

Appeal No. 2022003315 (E.E.O.C. Aug. 15, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Hyman W.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. Appeal No. 2022003315 Agency No. 4J-604-0050-22 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated May 2, 2022,2 dismissing his 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 worked as a City Carrier, Q-01, at the Agency’s Summit Argo Post Office facility in Summit Argo, Illinois. On April 4, 2022, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (Not Specified), religion (Muslim), color (Black), disability (Not Specified), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when: from April 1 through September 30, 2021, he was not accurately 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. 2 The Complaint File includes a revised final agency decision, dated June 8, 2022, which corrects a clerical error listing 2021 instead of 2022 as the year that Complainant received the Notice of Right to File and subsequently filed the formal complaint. 2022003315 2 paid Employee Federal Emergency Leave (EFEL) and was charged Leave Without Pay (LWOP), Sick Leave, and Annual Leave. The Agency dismissed the complaint for untimely EEO Counselor contact, pursuant to 29 C.F.R. § 1614.107(a)(2). It reasoned that the actions alleged were discrete acts and that Complainant was obligated to request pre-complaint counseling no later than 45 days from these discrete acts. The Agency noted that Complainant alleged that, on December 17, 2021, he was not paid for his EFEL request. However, the Agency concluded that it was not clear how that date was significant to his claim, as he would have been aware from his bi-weekly paychecks that his pay was incorrect from April through September 2021. The Agency further determined that proper notice was posted at Complainant’s facility and Complainant had prior EEO activity; thus, he had constructive knowledge of the relevant deadlines. CONTENTIONS ON APPEAL On appeal, Complainant argues that the Agency’s dismissal was improper. He submits that he filed his complaint within the 45 days stated in the dismissal letter. He also maintains that his formal complaint was filed on April 4, 2022, and not in April of 2021, as stated in the Agency’s dismissal. He asks for consideration of his appeal and to be allowed to present evidence of discrimination. The Agency submits no arguments or contentions on appeal. ANALYSIS AND FINDINGS 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, .106, and .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) 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. 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. See Howard v. Dep’t of the Navy, EEOC Request No. 05970852 (Feb. 11, 1999). Thus, the time limitation is not triggered until a complainant reasonably suspects discrimination, but before all the facts that support a charge of discrimination have become apparent. EEOC Regulations provide that the agency or the Commission shall extend the time limits when the individual shows that he was not notified of the time limits and was not otherwise aware of them, that he did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence he was prevented by circumstances 2022003315 3 beyond his control from contacting the Counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission. 29 C.F.R. § 1614.105(a)(2). Here, the record shows that Complainant initially contacted an EEO Counselor on December 21, 2021. Complainant’s EEO Counselor’s report and EEO Contact Summary indicate that he alleged the incident date was December 17, 2021. However, Complainant’s allegations concern the Agency’s payments for EFEL, sick, and annual leave usage from April 1, 2021 through September 30, 2021. As noted in the Agency’s final decision, Complainant has not explained the significance of the December 17, 2021 date, as he would have been aware of any pay and/or leave discrepancies upon receipt of his bi-weekly paychecks. Thus, we find he should have reasonably suspected the alleged discrimination upon receipt of those paychecks, from April 1, 2021 through September 30, 2021. Complainant’s contact with the EEO Counselor was more than 45 days beyond that time period. Complainant has not presented sufficient justification for extending or tolling the time limit. Therefore, we find that the complaint was properly dismissed for untimely EEO Counselor contact. CONCLUSION Accordingly, we AFFIRM the Agency's final decision dismissing the complaint. 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). 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 2022003315 4 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. 2022003315 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 August 15, 2022 Date