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

Equal Employment Opportunity Commission

Mar 2, 2023

Appeal No. 2023000794 (E.E.O.C. Mar. 2, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Melvin S.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. Appeal No. 2023000794 Agency No. 4J-481-0229-22 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated November 3, 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. BACKGROUND During the period at issue, Complainant worked as a City Carrier at the Agency’s Dearborn Heights Post Office in Dearborn Heights, Michigan. On October 8, 2022, Complainant filed a formal complaint claiming that the Agency discriminated against him based on race and in reprisal for prior protected EEO activity when: 1. On or around March 4, 2022, Complainant was issued a Notice of Removal; 2. On or around June 10, 2022, management did not honor a grievance settlement to promote Complainant to a regular carrier; 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. 2023000794 2 3. On July 23, 2022, an arbitration award gave Complainant his job back, but management did not allow him to work; and 4. On August 16, 2022, Complainant was issued a Notice of Removal. On November 3, 2022, the Agency issued a final decision dismissing the formal complaint on two grounds. First, the Agency dismissed the formal complaint pursuant to 29 C.F.R. § 1614.107(a)(2), finding that it was untimely filed. The Agency reasoned that Complainant received, by USPS certified mail, the Notice of Right to File a Formal Complainant (Notice) on September 22, 2022. The Agency found, however, that Complainant did not file his formal complaint until, October 8, 2022, one day beyond the 15-day filing period. Second, the Agency dismissed claims 2 and 3, pursuant to 29 C.F.R. § 1614.107(a)(1), for failure to state a claim. The Agency determined that the relevant claims constituted a collateral attack on the negotiated grievance procedure and should have been raised within the grievance procedure. The instant appeal followed. On appeal, Complainant argues that because the Agency stated that it received his formal complaint on Saturday, October 8, 2022, Complainant should have been given a grace period of two to three days to timely file his formal complaint because the complaint was received over a holiday weekend. Complainant further asserts that if the Agency received his formal complaint on October 8, 2022, then his complaint “had to be postmarked a few days before that,” and was therefore timely filed. ANALYSIS AND FINDINGS The regulation set forth at 29 C.F.R. § 1614.107(a)(2) states, in pertinent part, that an Agency shall dismiss a complaint which fails to comply with the applicable time limits contained in 29 C.F.R. § 1614.106, which, in turn, requires the filing of a formal complaint within fifteen (15) days of receiving notice of the right to do so. The Agency’s dismissal, due to the untimely filing of the formal complaint was proper. Documentation in the record reflects that Complainant received the Notice on September 22, 2022. The Agency submits a USPS delivery confirmation indicating that the Notice was delivered on this date to Complainant’s address on record. We note that Complainant does not dispute that he received the Notice on September 22, 2022. Thus, the fifteen-day deadline to file timely the formal complaint was Friday, October 7, 2022. Although Complainant asserts on appeal that he must have filed his formal complaint before October 8, 2022, the record indicates that the formal complaint was indeed mailed on October 8, 2022, as evidenced by the October 8, 2022 postmark date.2 2 We note that the Agency actually received the formal complaint on October 12, 2022. However, the Agency used the postmark date, not the date the document was physically received by the Agency, to determine the filing deadline. Consequently, this policy of using the postmark 2023000794 3 Consequently, Complainant’s filing was late and Complainant has not provided sufficient judication for the extension of the filing deadline. Here, the Friday, October 7, 2022, deadline did not fall on a Saturday, Sunday, or federal holiday, to warrant an extension to the following business day. Because we affirm the Agency’s dismissal of the formal complaint on the ground untimely filing, we need not address the Agency’s alternative grounds for dismissing claims 2 and 3. CONCLUSION The Agency’s final decision to dismiss the formal complaint on the grounds of untimely filing 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. date as the filing date is most beneficial to Complainant and accounts for any holiday delay mailing issues. 2023000794 4 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. 2023000794 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 March 2, 2023 Date