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

Equal Employment Opportunity Commission

Dec 14, 2022

Appeal No. 2022004972 (E.E.O.C. Dec. 14, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Janay K.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. Appeal No. 2022004972 Agency No. 4B-230-0189-22 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision (FAD) dated August 23, 2022, dismissing her complaint alleging 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 Rural Carrier at the Agency’s Post Office in Crozet, Virginia. On August 4, 2022, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of race (not specified2), color (not specified), and reprisal for prior protected EEO activity, when, on February 26, 2022, Complainant was put off work on 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 Complainant did not specify her race or color in her formal complaint. During counseling the EEO counselor described that Complainant’s race was Black. 2022004972 2 emergency placement when management accused her of hiding mail that should have been delivered.3 The Agency dismissed Complainant’s complaint pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO Counselor contact. The Agency reasoned that Complainant contacted an EEO counselor on April 24, 2022, which was beyond the 45-day time limit to do so. Complainant appealed the Agency’s decision to the Commission. Neither Complainant nor the Agency submitted a statement or brief on appeal. ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination be brought to the attention of the EEO counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within 45 days of the effective date of the action. The Commission has adopted a “reasonable suspicion” to determine when the 45-day limitation period is triggered. See Howard v. Department of the Navy, EEOC Request No. 05970852 (February 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. Here, the Agency determined that Complainant reasonably suspected discrimination on February 26, 2022, because that was the date that management placed off work on an emergency placement. However, during EEO counseling Complainant stated that she was not at work on February 26, 2022. Complainant declared that she returned to work on February 28, 2022, and that was when she received a letter stating that she was on emergency placement. Even if we used the date of February 28, 2022, as the date that Complainant reasonably suspected discrimination, Complainant did not initiate contact with an EEO counselor until April 24, 2022, which was beyond the 45-day time limit. On appeal, Complainant has made no arguments for waiver, estoppel, or equitable tolling of the timeline for making initial EEO counselor contact. Therefore, we find her claim concerning the emergency placement was properly dismissed as untimely raised. 3 Although it was not mentioned in the FAD, Complainant also raised a removal claim as part of her overall complaint. The Agency accepted the removal claim for investigation and later determined that Complainant failed to prove that she was subjected to discrimination. Complainant appealed the Agency’s decision on her removal to the Commission on October 7, 2022. That appeal, identified as EEOC Appeal No. 2023000229, is still pending. While our regulations, at 29 C.F.R. § 1614.107(b), do not provide for an appeal of a partial dismissal until final action is taken on the remainder of the complaint, here we are exercising our discretion to accept the current appeal on the emergency placement claim for the sake of judicial economy. 2022004972 3 CONCLUSION Accordingly, the Agency's final order dismissing Complainant's claim concerning the emergency placement 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. 2022004972 4 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. 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 December 14, 2022 Date