[Redacted], Shelby R., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Western Area), Agency.Download PDFEqual Employment Opportunity CommissionMar 2, 2021Appeal No. 2021001716 (E.E.O.C. Mar. 2, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Shelby R.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Western Area), Agency. Appeal No. 2021001716 Agency No. 4E-890-0104-20 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated December 15, 2020, dismissing a formal 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 During the period at issue, Complainant worked as a Supervisor, Customer Service, at the Agency’s Garside Post Office in Las Vegas, Nevada. On August 14, 2020, Complainant initiated EEO Counselor contact. Informal efforts to resolve her concerns were unsuccessful. On December 4, 2020, Complainant filed the instant formal complaint. Complainant claimed that the Agency subjected her to discrimination based on race and age when, in May 2020, she was reassigned to a different station. The record reflects that Complainant asserted that she was informed that the reassignment occurred because she had been supervising her son, which the Agency determined was a conflict of interest. 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. 2021001716 2 In its final decision, the Agency dismissed the formal complaint for untimely EEO counselor contact, pursuant to 29 C.F.R. § 1614.107(a)(2). 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. The alleged discriminatory event occurred in May 2020, when Complainant was reassigned to a different station. However, Complainant did not initiate contact with an EEO Counselor until August 14, 2020, well beyond the forty-five (45) day limitation period. Complainant had, or should have had, a reasonable suspicion of discrimination regarding her claim more than 45 days prior to her initial contact with an EEO counselor. The record contains a copy of a named Supervisor, Customer Service’s affidavit dated December 9, 2020, in which he asserted that EEO Poster 72 dated November 2018, “is displayed in conspicuous places throughout the building…EEO Poster 72 is posted on the employee bulletin boards located in the office. Poster 72 has been posted since I have been at the Garside and is currently on display. This poster advises employees of the time requirements for timely filing an EEO counseling request and the telephone number to contact to request EEO counseling [emphasis in its original].” On appeal, Complainant provided the following account of events which purportedly precipitated her reassignment. Specifically, Complainant claimed that in May 2020 the Human Resources Specialist and Labor Relations Specialist asked her if her son was working at the Garside Post Office and she answered that her son was indeed working there, and “I was told by the two of [them] that I could not work in the same station.” Complainant further stated that it was not until August 2020 when she learned that another named supervisor at Garside Post Office was supervising her husband, also an U.S. Postal Service employee. As such, she argued that she did not suspect discrimination until August. We find, however, that during EEO counseling Complainant stated that she had known about the other supervisor supervising her husband since 2019. She further stated that when she was told that she would have to be reassigned because of her son, she specifically asked about the other supervisor and was told it was a different situation because the comparator was a 204-B (acting) supervisor. Regardless of the merits of this matter, the record shows that Complainant knew or should have known about the alleged disparate treatment more than 45 days prior to seeking EEO counseling. In sum, we find that Complainant has not presented any persuasive or evidence warranting an extension of the time limit for initiating EEO Counselor contact. See 29 C.F.R. § 1614.604(c). The Agency properly dismissed the complaint for untimely EEO Counselor contact. 2021001716 3 CONCLUSION The Agency’s final decision dismissing Complainant’s formal complaint for untimely EEO Counselor contact 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 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. 2021001716 4 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. 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 2, 2021 Date Copy with citationCopy as parenthetical citation