[Redacted], Julie L., 1 Complainant,v.Denis R. McDonough, Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.

Equal Employment Opportunity Commission

Mar 14, 2022

Appeal No. 2021003249 (E.E.O.C. Mar. 14, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Marty A.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Eastern Area), Agency. Appeal No. 2021004606 Agency No. 1F-701-0014-21 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated July 26, 2021, dismissing a formal complaint alleging 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 During the relevant time, Complainant worked as a Custodian at the Agency’s New Orleans Main Post Office in New Orleans, Louisiana. On March 25, 2021, Complainant initiated EEO Counselor contact. Informal efforts to resolve his concerns were unsuccessful. On June 25, 2021, Complainant filed the instant formal complaint. Complainant claimed that the Agency subjected him to discrimination based on race, sex, and age when: 1. On June 18, 2020, he received a letter stating his bid was being abolished; 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. 2021004606 2 2. On December 14, 2020, he was involuntary assigned from a Level 8 position to the Custodial Level 4 position in Covington Post Office, effective January 16, 2021. In its July 26, 2021 final decision, the Agency dismissed the formal complaint for untimely EEO Counselor contact, pursuant to 29 C.F.R. § 1614.107(a)(2). Further, the Agency indicated that because EEO posters with timeframes was on display in Complainant’s workplace, he was, or should have been familiar with the 45-day limitation period. In support of its assertions, the record contains a copy of a statement dated November 14, 2018, in which the Manager, Maintenance Operations asserted that the November 2018 EEO Poster 72, containing the relevant timeframes, were visibly posted in the lobby and employee bulletin boards in the facility where Complainant worked. The instant appeal followed. 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. Here, it is undisputed that the alleged discriminatory events occurred on June 18, 2020, when Complainant received a letter stating his bid was being abolished, and on December 14, 2020, he was involuntary assigned from a Level 8 position to the Custodial Level 4 position in Covington Post Office effective January 16, 2021. However, Complainant did not initiate contact with an EEO Counselor until March 25, 2021, well beyond the forty-five (45) day limitation period. On appeal, Complainant stated that after being informed for several years, he was assured by managers that his job as a painter was secured. He stated, however, in June 2020, he received a letter stating that his position would be eliminated, and he accepted a voluntarily reassignment to Level 4 Custodial position at the Agency’s Covington, Louisiana facility. The record reflects that Complainant had, or should have had, a reasonable suspicion of discrimination regarding his claims more than 45 days prior to his initial contact with an EEO counselor. We note, finally, that Complainant pursued the grievance process regarding this matter. The Commission, however, has also consistently held that the use 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. U.S. Postal Service, EEOC Appeal No. 01954021 (Oct. 5, 1995); Williams v. U.S. Postal Service, EEOC Request No. 05910291 (April 25, 1991). CONCLUSION We AFFIRM the Agency’s final decision dismissing the formal complaint for untimely EEO contact. 2021004606 3 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 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). 2021004606 4 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 12, 2021 Date