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

Equal Employment Opportunity Commission

May 9, 2022

Appeal No. 2022001682 (E.E.O.C. May. 9, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Selma D.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. Appeal No. 2022001682 Agency No. 4B-150-0076-21 DECISION Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision, dated December 30, 2021, 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. 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 City Carrier, Q-01, at the McKeesport Post Office in McKeesport, Pennsylvania. On December 9, 2021, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the basis of sex (female). The Agency in its decision, framed the claims as follows: 1. on a date not specified in December 2020, when she voluntarily stepped down from her Higher Level detail to help deliver holiday mail, her pay was reduced to carrier pay, and after the holiday, she was not returned to her Higher Level detail; 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. 2022001682 2 2. on or around March 24, 2021, she was marked on the schedule as taking Leave Without Pay (LWOP) that she had not requested; and 3. on or around April 27, 2021, she was denied a Higher Level detail at the North Versailles Post Office. The Agency dismissed the complaint for untimely EEO Counselor contact, pursuant to 29 C.F.R. § 1614.107(a)(2). It reasoned that Complainant’s August 26, 2021 request for pre-complaint counseling was made more than 45 days after the allegedly discriminatory events. The Agency also determined that, while Complainant described two co-workers who had been granted Higher Level details in April 2021 and August 2021, these events concerned comparators and were not the allegedly discriminatory events at issue. To the extent that Complainant had waited until August 2021, when a second co-worker started a Higher Level detail, the Agency reasoned that waiting until one obtains proof of discrimination does not toll the applicable time limit. In addition, the Agency noted that Complainant did not claim she was unaware of the time limit for contacting an EEO Counselor and that the record contained an affidavit attesting to the fact that an EEO poster was appropriately displayed at the facility. CONTENTIONS ON APPEAL On appeal, Complainant argues that she does not agree with the decision to dismiss her formal complaint and requests a hearing. The Agency submitted no arguments on appeal. 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. 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 she was not notified of the time limits and was not otherwise aware of them, that she did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence she was prevented by circumstances beyond her control from contacting the Counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission. 2022001682 3 The record reflects that, on August 26, 2021, Complainant contacted an EEO Counselor regarding not being given opportunities for a Higher Level detail on or around April 27, 2021. In her formal complaint, Complainant noted that she learned in April 2021 that a male co-worker had started training for a High Level position, and on August 9, 2021 another male co-worker began training for the position as well. The Commission has found that because the limitation period for contacting an EEO Counselor is triggered by the reasonable suspicion standard, waiting until one has “supporting facts” or “proof” of discrimination before initiating a complaint can result in untimely Counselor contact. See Bracken vs. U.S. Postal Serv., EEOC Request No. 0590065 (Mar. 29, 1990). We find that Complainant should have reasonably suspected discrimination within 45 days of the discrete, allegedly discriminatory events. Yet Complainant did not contact an EEO Counselor until August 26, 2021, well beyond the forty-five day time limit. Since Complainant has not presented sufficient justification for extending or tolling the time limit, we find that the complaint was properly dismissed for untimely EEO Counselor contact. CONCLUSION Accordingly, the Agency's final decision dismissing Complainant's complaint 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 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 2022001682 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. 2022001682 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 9, 2022 Date