[Redacted], Sheryl S., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service, Agency.Download PDFEqual Employment Opportunity CommissionMar 23, 2021Appeal No. 2021002008 (E.E.O.C. Mar. 23, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Sheryl S.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service, Agency. Appeal No. 2021002008 Agency No. 4K-280-0006-21 DISMISSAL On February 5, 2021, Complainant filed the instant appeal with the Equal Employment Opportunity Commission (EEOC or Commission) regarding 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. On January 14, 2021, Complainant filed a formal EEO complaint claiming unlawful employment discrimination in reprisal for prior protected EEO activity. The Agency framed the claims as follows: (1) On August 26, 2020, Complainant was issued a Letter of Warning (LOW) for Unsatisfactory Work Performance; and, (2) On unspecified dates, management falsified Complainant’s time. On February 4, 2021, the Agency issued a “Revised Partial Acceptance/Partial Dismissal of Formal Complaint.” 2 Claim (1) was accepted for investigation. 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 original acceptance letter, dated January 14, 2021, only included claim (1). 2021002008 2 Claim (2) was dismissed, pursuant to 29 C.F.R. 1614.107(a)(2), on the grounds that Complainant did not raise the issue with the EEO Counselor. The letter also informed Complainant: “There is no right to appeal this decision at this time.” Rather, Complainant was advised that she could submit a statement for the record regarding her position on the dismissal to the Manager, National EEO Investigative Services Office or raise the matter with an EEOC administrative judge if her complaint went to a hearing. The next day, Complainant filed the instant appeal. On appeal Complainant expresses her disagreement with the dismissal and seeks to have claim (2) included. In response to the appeal, the Agency contends that it has not issued a decision on the complaint and the appeal is premature. EEOC Regulations 29 C.F.R. 1614.107(b) provides, in relevant part: “Where the Agency believes that some but not all of the claims in a complaint should be dismissed . . . the Agency shall notify Complainant in writing. . . . the determination is reviewable by an Administrative Judge if a hearing is requested on the remainder . . .” Further, an appeal is not appropriate until final action is taken on the remainder of the complaint. See id. Therefore, as a final decision has not been issued, Complainant’s appeal is DISMISSED as premature. 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 2021002008 3 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. 2021002008 4 Such requests do not alterthe 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 23, 2021 Date Copy with citationCopy as parenthetical citation