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

Equal Employment Opportunity Commission

Aug 3, 2022

Appeal No. 2022002952 (E.E.O.C. Aug. 3, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Marguerite W.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. Appeal No. 2022002952 Agency No. 4E-940-0031-22 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated April 14, 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND During the relevant period, Complainant worked as a City Carrier at the Agency’s Post Office in Burlingame, California. On February 11, 2022, Complainant initiated EEO Counselor contact. Informal efforts to resolve her concerns were unsuccessful. On March 17, 2022, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of national origin, sex, 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. 2022002952 2 1. On November 20, 2021, her request for Family Medical Leave Act (FMLA) leave was not granted; 2. On or about November 20, 2021, management did not immediately call 911 and Complainant was required to provide medical documentation and charged with unscheduled leave for her absence; 3. On or about November 20, 2021, management provided a false statement to the Office of Workers Compensation Program (OWCP); and 4. On February 7, 2021, she was required to provide medical documentation. In its April 14, 2022 final decision, the Agency dismissed claims 1, 2 and 3 for untimely EEO Counselor contact pursuant to 29 C.F.R. § 1614.107(a)(2). The Agency determined that Complainant’s initial contact was on February 11, 2022, which it found to be beyond the 45-day limitation period. The Agency also dismissed the entire complaint, pursuant to 29 C.F.R. § 1614.107(a)(1), for failure to state a claim. The instant appeal followed. Complainant did not submit a brief on appeal. ANALYSIS AND FINDINGS Claims 1, 2 and 3: Untimely EEO Counselor Contact The regulation set forth at 29 C.F.R. § 1614.105(a)(1) provides, in relevant period, that an aggrieved person must initiate contact with an EEO 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. Furthermore, 29 C.F.R. § 1614.107(a)(2) provides that an agency shall dismiss a claim that fails to comply with the applicable time limits contained in § 1614.105, unless the agency extends the time limits under applicable law. Here, the matters alleged to be discriminatory in Claims 1, 2 and 3 occurred on November 20, 2012, but Complainant did not initiate contact with an EEO Counselor until February 11, 2022, well beyond the 45-day limitation period. Complainant provides no justification for the delay in initiating EEO contact. Therefore, we affirm the dismissal of these claims as untimely raised. 2022002952 3 Claim 4: Failure to State a Claim An agency shall accept a complaint from an aggrieved employee or applicant for employment who believes they have been discriminated against by that agency because of race, color, religion, sex, national origin, age or disabling condition. 29 C.F.R. §§ 1614.103, .106(a). The Commission’s federal sector case precedent has long defined an “aggrieved employee” as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Diaz v. Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994). The regulation set forth at 29 C.F.R. § 1614.107(a)(1) provides, in relevant part, that an Agency shall dismiss a complaint that fails to state a claim. Here, Claim 4 concerns the Agency’s requirement, on February 7, 2021, that Complainant provide medical documentation to support an absence from work. We concur with the Agency that, without more, this claim did not render Complainant sufficiently aggrieved to state a claim of discrimination under Title VII or the ADEA. See, e.g., Richardson v. U.S. Postal Service, EEOC Appeal No. 0120071425 (September 30, 2008) (Affirmed the dismissal of a complaint challenging a request that the complainant provide medical documentation to support an absence. The decision noted, “The request for medical documentation was a single, isolated event, and was not part of an ongoing series of actions constituting a pattern of discriminatory harassment. Furthermore, a request for documentation does not rise to the level of severity which would render complainant aggrieved…”). See also, Ness v. U.S. Postal Service, EEOC Appeal No. 01981368 (November 27, 2000); McKinnon v. U.S. Postal Service, EEOC Appeal No. 0120063226 (April 17, 2008), citing Ly v. U.S. Postal Service, EEOC Appeal No. 01A11544 (May 2, 2003). Under the circumstances presented in the instant case, the Agency’s directive to Complainant to provide medical documentation for an absence does not address a personal loss or harm to a term, condition, or privilege of employment. CONCLUSION The Agency’s final decision dismissing Complainant’s formal complaint for the reasons stated herein is AFFIRMED. Because we have affirmed the dismissal for the reasons discussed above, we will not address the Agency’s alternative dismissal grounds. 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. 2022002952 4 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. 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. 2022002952 5 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 August 3, 2022 Date