Madalene A.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Eastern Area), Agency.

Equal Employment Opportunity Commission

Sep 10, 2019

2019004601 (E.E.O.C. Sep. 10, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Madalene A.,1
Complainant,

v.

Megan J. Brennan,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.

Appeal No. 2019004601

Agency No. 1C-081-0017-19

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency's final decision dated May 15, 2019, 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 for the Agency as a Mail Processing Clerk in
Bellmawr, New Jersey.

On January 31, 2019, Complainant initiated EEO Counselor contact. Informal efforts to resolve
her concerns were unsuccessful.

On April 30, 2019, Complainant filed the instant formal complaint. Complainant claimed that
the Agency subjected her to discrimination based on race, sex, color, age, and in reprisal for prior
EEO activity when:

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.
2019004601

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1. on a date not specified in 2017, management controverted her Office of Worker’s
Compensation (OWCP) claim, causing it to be denied; and

2. on or around October 17, 2018, she was issued a Separation Disability letter effective
November 18, 2018.

In its May 15, 2019 final decision, the Agency dismissed claims 1 and 2 on the grounds of
untimely EEO Counselor contact, pursuant to 29 C.F.R. § 1614.107(a)(2). Specifically, the
Agency determined that Complainant initiated EEO Counselor contact on January 31, 2019,
which the Agency found was more than forty-five days after the alleged discriminatory events
occurred.

The Agency further dismissed claim 1 for failure to state a claim, pursuant to 29 C.F.R. §
1614.107(a)(1). Specifically, the Agency found that the subject claim is a collateral attack on the
Office of Workers Compensation (OWCP) process. The Agency stated that Complainant should
have raised her allegations through the OWCP process, and not through the EEO complaint
process.

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
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.

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 EEO Counselor within the time limits, or
for other reasons considered sufficient by the agency or the Commission.

The Agency correctly determined that Complainant’s EEO Counselor contact concerning the
instant matter was well beyond the 45-day limitation period. Complainant has not indicated that
she was unaware of the time limitations for timely contacting an EEO Counselor, nor does she
indicate that she was prevented by reasons beyond her control from contacting an EEO
Counselor in a timely manner. The record discloses that the most recent alleged discriminatory
event occurred on October 17, 2018, but that Complainant did not initiate contact with an EEO
Counselor until January 31, 2019, which is beyond the forty-five (45) day limitation period.

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On appeal, Complainant has presented no persuasive arguments or evidence warranting an
extension of the time limit for initiating EEO Counselor contact.

The Agency’s final decision dismissing claims 1 and 2 on the ground of untimely EEO
Counselor contact is AFFIRMED.2

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).

2 Because we affirm the Agency’s dismissal of claim 1 for the reason stated here, we will not
address alternative dismissal grounds.
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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

September 10, 2019
Date