[Redacted], Maximo C., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Pacific Area), Agency.

Equal Employment Opportunity Commission

Aug 10, 2022

Appeal No. 2022001756 (E.E.O.C. Aug. 10, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Maximo C.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Pacific Area), Agency. Appeal No. 2022001756 Agency No. 4E-926-0008-22 DECISION Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision, dated January 10, 2022, dismissing 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. The Commission accepts the appeal in accordance with § 29 C.F.R. 1614.405. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Clerk at the Agency’s main post office in Pasadena, California. On December 15, 2021, Complainant filed a formal complaint alleging that the Agency subjected him to hostile workplace discrimination on the bases of race, sex, color, and reprisal for prior protected EEO activity when: 1. On dates, in April 2021, his Supervisor singled him out for observation and questioned his productivity. 2. On April 28, 2021, he was given a Fact Finding, and subsequently, on May 6, 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. 2022001756 2 2021, he was issued a Letter of Warning. 3. On May 1, 2021, his request to leave early was denied. 4. On June 15, 2021, he received letters from his Supervisor in which she threatened him with discipline for his absences despite them being covered by FMLA. 5. On July 14, 2021, his e-access privileges were revoked. 6. On September 1, 2021, he was given a Fact Finding, and subsequently, on September 9, 2021, he was issued a Letter of Warning. The Agency issued a decision dismissing the complaint for untimely EEO Counselor contact, pursuant to 29 C.F.R. § 1614.107(a)(2). The Agency reasoned that Complainant’s October 31, 2021 contact was 52 days after the most recent allegedly discriminatory event. Further, the Agency reasoned that the events comprising a claim of harassment are also untimely, as the discrete act in claim 6 was not timely raised. The Agency noted that Complainant did not assert that he was unaware of the time limit and that EEO posters, describing the time limits, were on display at the facility. Complainant filed the instant appeal. On appeal, Complainant contends that he was unaware of the 45-day time limitation and “originally thought I had 60 days to file an EEO complaint.” Additionally, he asserts that he was “very hesitant of filing an EEO complaint because I was experiencing stress, anxiety, and elevated blood pressure. . .” as a result of the hostile work environment and harassment caused by his supervisor. Complainant states he fears reprisal from his supervisor. 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 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 Counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission. 2022001756 3 The record discloses that the most recent, alleged discriminatory event occurred on September 9, 2021, but Complainant did not initiate contact with an EEO Counselor until October 31, 2021, which is beyond the forty-five (45) day limitation period. While Complainant argues that he was unaware of the time limit for contacting an EEO Counselor, the record includes an affidavit attesting to the fact that an EEO poster was appropriately displayed at Complainant’s facility. Therefore, Complainant had constructive knowledge of the applicable time limits. See Santiago v. U.S. Postal Serv., EEOC Request No. 05950272 (July 6, 1995). As for Complainant’s reference to fear of reprisal, while it may be genuinely held, the Commission has repeatedly held that mere fear of reprisal is an insufficient justification for extending the time limitation for contacting an EEO Counselor. See Nick S. v. Dep’t of Commerce, EEOC Appeal No. 2021002469 (Jul. 27, 2021). We find Complainant has not presented sufficient justification for extending or tolling the time limit for contacting an EEO Counselor. CONCLUSION Accordingly, the Agency's final decision dismissing Complainant's complaint 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, 2022001756 4 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. 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. 2022001756 5 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 10, 2022 Date