Scott K,1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency.

Equal Employment Opportunity Commission

Sep 17, 2020

2020003076 (E.E.O.C. Sep. 17, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Scott K,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 2020003076 Hearing No. 420-2019-00342X Agency No. 1G-351-0056-18 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final action dated February 27, 2020, implementing the EEOC Administrative Judge’s (AJ’s) dismissal of 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Senior Manager Distribution Operations at the Agency’s facility in Birmingham, Alabama. On December 12, 2018, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the basis of race (African-American). By letter dated January 14, 2019, the Agency accepted Complainant’s complaint for investigation and determined that it was comprised of the following claim: 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. 2020003076 2 1. Since January 2018, [Complainant’s supervisor] has spoken to [him] in an insulting and/or demeaning manner; 2. Since January 2018, [Complainant] has been threatened with being disciplined, and/or terminated; 3. Since January 2018, [Complainant] has been singled out during daily telecoms; 4. Since January 2018, [Complainant has] been required to report when [he] would be impacting customer service with late trips. Upon completion of the investigation, Complainant requested a hearing before an EEOC Administrative Judge (AJ). On February 13, 2020, the AJ issued a Notice of Proposed Dismissal. Therein, the AJ set forth that the matter appeared appropriate for dismissal on the grounds of untimely EEO Counselor contact. The AJ found that Complainant was alleging a hostile work environment claim between January 2018, and June 2018, but did not initiate EEO contact until August 31, 2018. The AJ, in the Notice of Proposed Dismissal, set forth that during an Initial Conference on February 3, 2020, she notified Complainant that she may dismiss the matter for untimely EEO Counselor contact. The AJ stated that Complainant replied that it was not untimely because he had complained to management prior to contacting the EEO Counselor. The AJ further stated “[Complainant] later added that there was additional misconduct that had been ongoing since June 21, 2018, and as a result. the matter was a continuing violation. The AJ responded to this assertion by determining that “the record contains no allegations from Complainant…of any incidents after June 21, 2018 and Complainant did not move to amend to add new incidents during the investigation, when he entered the hearing process, or prior to his IC contention in response to the notice of likely dismissal. In the interest of fairness, even assuming Complainant were to advance new allegations, the [AJ] would not amend them into this complaint. Notably, Complainant left the workplace on June 22, 2018 and had not retuned as of today’s date.” The AJ provided the parties five days to respond to this Notice. On February 19, 2020, Complainant filed a response to the AJ’s Notice of Proposed Dismissal. Complainant stated that the alleged delay was caused by illness resulting from the alleged Agency harassment. Complainant stated that he was diagnosed with “major depressive disorder, recurrent, severe and extreme elevation of his Post [Traumatic Stress Disorder] (PTSD), excessive daytime sleepiness…” On February 26, 2020, the AJ issued a decision dismissing the matter for the reasons set forth in her Notice of Proposed Dismissal. The AJ further set forth that she found Complainant’s response self-serving and unreliable. 2020003076 3 The AJ noted that Complainant did not raise the issue of his medical condition when the AJ put him on notice during the IC of a possible dismissal for untimely EEO Counselor contact. Finally, the AJ further set forth that “Complainant offered no medical evidence in his particular case to support that he was so incapacitated that he could not contact the EEO office before or after he went on FMLA leave.” The Agency issued a final action implementing the AJ’s dismissal. The instant appeal followed. On appeal, Complainant submits his response to the AJ’s Notice of Proposed Dismissal. In response, the Agency requests that we affirm the AJ’s decision dismissing Complainant’s complaint. 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 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 beyond his control from contacting the Counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission. The AJ properly dismissed Complainant’s complaint for untimely EEO Counselor contact. Complainant asserted when he initiated EEO contact and during the investigation process that he was subjected to a hostile work environment through June 21, 2018. However, Complainant did not initiate EEO contact until August 31, 2018, outside of the applicable time period. To the extent Complainant asserts that he told other management and union officials about the alleged harassment prior to his FMLA leave, we do not find this reason sufficient justification for his untimely EEO contact. The Commission has consistently held that the use of agency procedures, union grievances, and other remedial processes does not toll the time limit for contacting an EEO Counselor. See Ellis v. United States Postal Service, EEOC Appeal No. 01992093 (November 29, 2000). 2020003076 4 We do not find that Complainant has presented sufficient justification for extending the applicable time limit. While Complainant, subsequent to the IC held on February 3, 2020 (in which the AJ informed the parties that she would likely dismiss this matter for untimely EEO Counselor contact), Complainant filed a motion to amend to include an additional incident of retaliation during the time he was on leave. We concur with the AJ that Complainant’s motion to amend was insufficient to extend the applicable time limit. The AJ, in her proposed dismissal, reasoned that “the record contains no incidents after June 2018 and Complainant did not move to amend to add new incidents during the investigation, when he entered the hearing process, or prior to his IC contention in response to the notice of likely dismissal...[E]ven assuming Complainant were to advance new allegations, the [AJ] would not amend them into this complaint. Notably, Complainant left the workplace on June 22, 2018 and had not returned as of today’s date.” We further find that Complainant’s assertion that he was unable to timely initiate EEO contact due to medical reasons is not sufficient justification for extending the applicable time limit. We acknowledge that Complainant submitted, with his response to the AJ’s proposed dismissal, some FMLA forms indicating he was eligible for FMLA leave. However, the record is devoid of specific medical documentation indicating that Complainant was so incapacitated during the relevant period that he was unable to timely initiate EEO contact.2 We have consistently held, in cases involving physical or mental health difficulties, that an extension is warranted only where an individual is so incapacitated by his condition that he is unable to meet the regulatory time limits. See Davis v. U.S. Postal Serv., EEOC Request No. 05980475 (Aug. 6, 1998); Crear v. U.S. Postal Serv., EEOC Request No. 05920700 (Oct. 29, 1992). Accordingly, we AFFIRM the Agency’s final action implementing the AJ’s dismissal. 2 To the extent Complainant asserts he could not initiate EEO contact while on FMLA leave because he was not on postal property, Complainant could have initiated contact with the Agency’s (United States Postal Service) EEO Office via mail. 2020003076 5 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which 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 to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party shall have twenty (20) calendar days of receipt of another party’s timely request for reconsideration in 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). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). The request or opposition must also include proof of service on the other party. Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your 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. 2020003076 6 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 September 17, 2020 Date