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

Equal Employment Opportunity Commission

Jan 31, 2023

Appeal No. 2022005078 (E.E.O.C. Jan. 31, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Rachael F.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. Appeal No. 2022005078 Hearing No. 460-2022-00140X Agency No. 4G-770-0136-22 DECISION Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated May 24, 2022,2 dismissing her 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant was a former City Carrier Assistant at the Agency’s Hempstead Post Office facility in Hempstead, Texas. 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 Instead of appealing the final agency decision dated May 24, 2022, to the Office of Federal Operations, Complainant filed a hearing request, which we acknowledged on June 2, 2022. The case was then assigned to an Administrative Judge (AJ), who subsequently issued an Order of Dismissal, dated August 24, 2022. In that Order, the AJ dismissed Complainant’s complaint but declared the Agency’s final decision of May 24, 2022, to be the final administrative action in this matter. We exercise our discretion to accept the appeal. 2022005078 2 On April 23, 2022, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination and harassment. The Agency framed this as a claim of discrimination on the bases of race (Asian), national origin (Filipino), sex (female), religion (not specified), color (not specified), age, and reprisal for current EEO activity when: 1. On August 28, 2021, Complainant was issued a Letter of Termination during her probationary period. 2. In August 2021 and September 2021, Complainant’s sexual harassment complaint against her co-worker was dismissed by the Office of Inspector General and management. 3. In August 2021 and September 2021, the union stated they would not represent Complainant for her Letter of Termination, dated August 28, 2021, and did not file a grievance on her behalf regarding her claim of being sexually harassed by her co-worker. 4. In August 2021 and September 2021, the Postmaster repeatedly stated that she was a “black woman.” 5. In August 2021 and September 2021, Complainant’s request for Postmaster training was not granted and she was told that she was too young to be a Postmaster. 6. In September 2021, management asked Complainant personal religious questions, insisted she was Spanish, and could not believe she was Filipino. 7. On an unspecified date, Complainant submitted a complaint statement to the Postmaster General that was forwarded to Complainant’s Postmaster. Complainant alleged that her Postmaster stated all complaints would be forwarded to her. The Agency dismissed claims 1-6 for untimely EEO Counselor contact, pursuant to 29 C.F.R. § 1614.107(a)(2). The Agency also dismissed claim 3 for failure to state a claim, pursuant to 29 C.F.R. § 1614.107(a)(1), finding that Complainant was making a collateral attack on another proceeding. Lastly, the Agency dismissed claim 7 for failure to state a claim, pursuant to 29 C.F.R. § 1614.107(a)(1), determining that Complainant had not specifically alleged that she was aggrieved by the action at issue. The instant appeal followed. 2022005078 3 ANALYSIS AND FINDINGS 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 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. 29 C.F.R. § 1614.105(a)(2). Here, Complainant wrote on her formal complaint that she learned of the discrimination in September 2021. The record also indicates that Complainant was terminated on September 28, 2021. Complainant does not dispute that the events in claims 1-6 took place in August and September 2021. We find that Complainant should have reasonably suspected discrimination when these allegedly discriminatory events occurred in August and September 2021. Yet the record shows that Complainant initially contacted an EEO Counselor on January 24, 2022, which was more than 45 days beyond the dates in question. Upon consideration of the record, we further find Complainant has failed to provide sufficient justification for extending or tolling the time limit. Thus, we find the Agency’s dismissal of claims 1-6 for untimely EEO Counselor contact was proper.3 Failure to State a Claim 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. An agency shall accept a complaint from any aggrieved employee or applicant for employment who believes that she has 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). 3 In light of our affirmance of the Agency’s dismissal of claim 3 on these grounds, we need not address the Agency’s alternative grounds for dismissal. 2022005078 4 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. Dep’t of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994). Here, the record indicates that, on February 9, 2022, Complainant allegedly submitted a complaint statement to the Postmaster General that was forwarded to her Postmaster. Complainant did not specifically identify the present harm or loss she suffered as a result of this alleged action. Thus, assuming the issue in claim 7 occurred as alleged, we do not find that Complainant alleged facts sufficient to state that she was an aggrieved employee. We thus find that the Agency properly dismissed claim 7 for failure to state a claim upon which relief can be granted pursuant to 29 C.F.R. § 1614.107(a)(1). CONCLUSION Accordingly, for the reasons described herein, we AFFIRM the Agency’s final decision dismissing the complaint 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 2022005078 5 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. 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. 2022005078 6 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 January 31, 2023 Date