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

Equal Employment Opportunity Commission

Feb 7, 2023

Appeal No. 2023000608 (E.E.O.C. Feb. 7, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Madeleine C.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. Appeal No. 2023000608 Agency No. 1C-731-0092-22 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated October 5, 2022, dismissing a formal 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. 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 was an applicant for Agency employment in Oklahoma City, Oklahoma. On December 17, 2021, Complainant initiated EEO Counselor contact. Informal efforts to resolve her concerns were unsuccessful. Complainant filed a formal complaint alleging that the Agency subjected her to discrimination based on sex, race, color, age, and in reprisal for prior protected EEO activity. On October 5, 2022, the Agency issued a final decision. The Agency determined that the formal complaint was comprised of the following claims: 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. 2023000608 2 1. On October 5, 2021, [Complainant] alleged after attending the “meet and greet” session [a named Operation Support Specialist], asked for her phone number [and] sent [her] an inappropriate text message. 2. On or about November 8, 2021, [Complainant] became aware [she was] not hired for the postal service position. 3. Beginning on or about November 8, 2021, [Complainant] alleged [the named Operation Support Specialist] sent [her] several inappropriate messages via Facebook and text messaging. The Agency dismissed the formal complaint in its entirety on the grounds the formal complaint was untimely filed. The Agency reasoned that the Notice of Right to File a Formal Complaint (Notice) was delivered to Complainant’s address of record on March 12, 2022, but that Complainant did not file her formal complaint until September 14, 2022 (postmark date) outside of the applicable time limit. In addition, the Agency dismissed claim (1) for untimely EEO Counselor contact. The Agency reasoned that the alleged incident occurred on October 5, 2021, but that Complainant did not initiate EEO Contact until December 17, 2021, outside of the applicable time period. The instant appeal followed. On appeal, Complainant, through her attorney, requests that we reverse the Agency’s final decision dismissing her complaint. Regarding the Agency’s dismissal that her formal complaint was untimely filed, Complainant’s attorney argues that from March 7, 2022 to April 1, 2022, Complainant was not at her home. Complainant’s attorney asserts that during this time, Complainant was caring for her father while he received treatment for a medical condition. Complainant’s attorney argues further that Complainant’s father died on March 15, 2022 and that Complainant subsequently returned home and received the Notice on April 1, 2022. Complainant’s attorney states that on this date, April 1, 2022, she mailed the formal complaint.2 Complainant’s attorney asserts that the signature on the USPS Postal Tracking printout for the Notice is “inconsistent” with Complainant’s signature. Regarding the dismissal of claim (1) for untimely EEO Counselor contact, Complainant’s attorney states that the October 5, 2021 date, referenced in claim (1), was the start date for Complainant’s harassment claim which continued through November 8, 2021 and thus Complainant’s December 17, 2021 EEO contact was timely. 2 In Complainant’s statement on appeal, her attorney, at various points in the document, sets forth that the date Complainant returned home and received the Notice was on April 1, 2021 (rather than April 1, 2022). However, this appears to be an inadvertent error. 2023000608 3 ANALYSIS AND FINDINGS Dismissal for Formal Complaint Being Untimely Filed EEOC Regulation 29 C.F.R. § 1614.106(b) requires the filing of a written complaint with an appropriate agency official within fifteen (15) calendar days after receipt of the notice of the right to file a formal complaint. 29 C.F.R. § 1614.107(a)(2) provides that the agency shall dismiss a complaint that fails to comply with the applicable time limits contained in §§ 1614.105, 1614.106, and 1614.204(c), unless the agency extends the time limits in accordance with § 1614.604(c). The Agency improperly dismissed Complainant’s formal complaint on the grounds it was untimely filed. The record contains a Notice to Complainant dated March 10, 2022 informing her that she had 15 days from receipt of the Notice to file a formal complaint. We further acknowledge that the record contains a USPS Tracking printout indicating the Notice was delivered to Complainant’s address of record on March 12, 2022. However, Complainant asserts that she was not home during this period due to her father’s health and subsequent death.3 Complainant also asserts that the signature on the USPS printout is not consistent with her signature. While the USPS printout contains a signature, we are unable to read the signature at issue. Complainant further asserts that she filed the formal EEO complaint on April 1, 2022, the date she returned home and received the Notice. We note that the record contains a formal complaint from Complainant dated April 1, 2022 and with a postmark date on September 14, 2022. Complainant’s attorney states that they resubmitted the paperwork to the Agency in September 2022, to follow up on the status of her complaint. In addition, the record supports Complainant’s contention that she filed her formal complaint at some time prior to September 2022. The record contains an email dated July 21, 2022 from an attorney at the law firm currently representing Complainant to the EEO Counselor. Therein, the attorney stated that she is inquiring as to the status of Complainant’s case. In response, the EEO Counselor, in an email to the attorney dated July 25, 2022, stated that “her complaint is in the formal stage of the process…at this time the system does not indicate if the claim was accepted or dismissed yet.”4 3 The record contains a copy of a Certificate of Death for an individual sharing the same last name as Complainant, listing the date of death as March 15, 2022. 4 The record also contains an affidavit from the EEO Counselor. Therein, the EEO Counselor asserted that Complainant called her in June 2022, stating that she had not heard from anyone regarding her case. The EEO Counselor stated that she responded that Complainant had not filed the paperwork. According to the EEO Counselor’s affidavit, Complainant responded that she had. While the EEO Counselor asserted that Complainant subsequently called her and told her that her attorney’s assistant had the paperwork and would submit it, Complainant’s attorney asserts that after Complainant filed her formal complaint on April 1, 2022, she lost the 2023000608 4 Based on this July 25, 2022 email, it appears that Complainant filed her formal EEO complaint prior to September 14, 2022. In addition, the Agency does not submit a response to Complainant’s arguments that she filed the formal complaint on April 1, 2022, the date she received the Notice, that the signature on the USPS printout is inconsistent with her signature, and that the EEO Counselor in a July 2022 email indicated that Complainant’s complaint was already in the formal process. Where as here, there is an issue of timeliness, “[a]n agency always bears the burden of obtaining sufficient information to support a reasoned determination as to timeliness.” See Guy v. Dep't of Energy, EEOC Request No. 05930703 (Jan. 4, 1994) (quoting Williams v. Dep't of Defense, EEOC Request No 05920506 (Aug. 25, 1992). In addition, in Ericson v. Dep't of the Army, EEOC Request No. 05920623 (Jan. 14, 1993), the Commission stated that “the agency has the burden of providing evidence and/or proof to support its final decision. See also Gens v. Dep't of Defense, EEOC Request No. 05910837 (Jan. 31, 1992). In the instant matter, we find that the Agency has not met its burden. Dismissal for Untimely EEO Counselor Contact 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 Agency improperly dismissed claim (1) for untimely EEO Counselor contact. The record reflects that Complainant is alleging a harassment claim. Two of the claims (Claims (2) and (3)) occurred on November 8, 2021, within the 45 days preceding Complainant’s December 17, 2021 EEO contact. The Commission has held that “[b]ecause the incidents that make up a hostile work environment claim collectively constitute one unlawful employment practice, the entire claim is actionable, as long, as at least one incident that is part of the claim occurred within the paperwork and subsequently found it. Complainant’s attorney states that they re-submitted it to the Agency in September 2022 as part of a status inquiry. 2023000608 5 filing period. This includes incidents that occurred outside the filing period that the [Complainant] knew or should have known were actionable at the time of their occurrence.” EEOC Compliance Manual, Section 2, Threshold Issues at 2 - 75 (revised July 21, 2005) (citing National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 117 (2002)). Based on the foregoing, we find that Complainant timely contacted an EEO Counselor with respect to her hostile work environment claim. We REVERSE the Agency’s final decision dismissing the formal complaint and we REMAND this matter to the Agency for further processing in accordance with the ORDER below. ORDER (E0618) The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. § 1614.108 et seq. The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision was issued. The Agency shall issue to Complainant a copy of the investigative file and also shall notify Complainant of the appropriate rights within one hundred fifty (150) calendar days of the date this decision was issued, unless the matter is otherwise resolved prior to that time. If the Complainant requests a final decision without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of Complainant’s request. As provided in the statement entitled "Implementation of the Commission's Decision,” the Agency must send to the Compliance Officer: 1) a copy of the Agency’s letter of acknowledgment to Complainant, 2) a copy of the Agency’s notice that transmits the investigative file and notice of rights, and 3) either a copy of the complainant’s request for a hearing, a copy of complainant’s request for a FAD, or a statement from the agency that it did not receive a response from complainant by the end of the election period. IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. If the Agency does not comply with the Commission’s order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission’s order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). 2023000608 6 Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled “Right to File a Civil Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. 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). 2023000608 7 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 (R0610) This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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. 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 February 7, 2023 Date