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

Equal Employment Opportunity Commission

Sep 28, 2022

Appeal No. 2022003923 (E.E.O.C. Sep. 28, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Tommy C.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. Appeal No. 2022003923 Agency No. 4G-335-0070-22 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated April 18, 2022, dismissing his 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 Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND During the period at issue, Complainant worked as a City Carrier, Grade 01-Q, at the Agency’s Main Post Office in Winter Haven, Florida. On December 17, 2021, Complainant contacted an EEO Counselor to report that he believed that the Agency had subjected him to discrimination. The matter remained unresolved after informal counseling. On April 1, 2022, Complainant filed a formal complaint alleging that discrimination on the bases of disability and in reprisal for prior EEO-protected activity (previously settled EEO case with Agency No, 4G-335-0164-20) 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. 2 2022003923 1) On May 3, 2020, Complainant became aware he not been paid correctly in March 2020; and 2) On July 8, 2021 and dates not specified around June 2021 through July 2021, Complainant was charged with Leave Without Pay (LWOP). On April 18, 2022, the Agency dismissed the formal complaint in accordance with 29 C.F.R. § 1614.107(a)(2), for untimely EEO Counselor contact. According to the Agency, the latest alleged discriminatory event occurred by the end of July 2021 at the latest, and Complainant did not initiate EEO Counselor contact until December 17, 2021, well beyond the 45-day limitation period. The instant appeal followed. ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R. § 1614.105(a)(1) provides, in relevant part, that complaints of discrimination must be brought to the attention of an EEO Counselor within forty-five days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five calendar 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 45-day limitation period is triggered. Howard v. Dep't of the Navy, EEOC Request No. 05970852 (Feb. 11, 1999). Thus, the time limitation is triggered as soon as a complainant reasonably suspects discrimination, before all facts that support a charge of discrimination have become apparent. In accordance with 29 C.F.R. § 1614.107(a)(2), an agency shall dismiss a formal EEO complainant that fails to comply with applicable time limits. Time limits shall be extended if a complainant was not notified of the time limits, was unaware of them, or reasonably did not know that the discrimination occurred, or that, despite due diligence, circumstances beyond Complainant’s control prevented timely EEO Counselor contact, or for other reasons considered sufficient by the Agency or EEOC. Upon review, the Commission finds that the Agency properly dismissed Complainant’s complaint pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO Counselor contact. The record discloses that the latest alleged discriminatory event occurred no later than July 2021, but Complainant did not initiate contact with an EEO Counselor until December 17, 2021, which is far beyond the forty-five-day limitation period. On appeal, Complainant has failed to provide any justification evidence warranting an extension of the applicable time limit for initiating EEO Counselor contact. Moreover, Complainant’s prior EEO activity suggests that he was aware, or should have been aware, of the limited 45-day time window for properly reporting discrimination timely to an EEO Counselor. 3 2022003923 CONCLUSION The Agency's final decision dismissing the formal complaint for untimely EEO contact 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. 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. 4 2022003923 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. 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 September 28, 2022 Date