EEOC Appeal 2020000961

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Selma D.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Western Area),
Agency.
Appeal No. 2020000961
Agency No. 4X-148-0035-19
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from an Agency decision, dated October 16, 2019, dismissing her complaint of
unlawful employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973
(Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. and the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. The Commission accepts
the appeal in accordance with 29 C.F.R. § 1614.405.
BACKGROUND
During the relevant time, Complainant worked as a Customer Care Agent at the Agency’s
Customer Care Center in Los Angeles, California.
Believing that she was subjected to discrimination based on age, disability, and reprisal,
Complainant contacted an EEO Counselor. 	Informal efforts to resolve Complainant’s concerns
were unsuccessful.
On September 19, 2019 Complainant filed the instant formal complaint alleging that, between
January 9, 2016 and March 30, 2019, she was working a flexible and compressed work schedule
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.

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of four ten-hour days per week and was denied overtime (OT) for the two hours per day she worked
more than eight hours and was only paid eight hours a day for her holidays.
In its October 16, 2019 decision, the Agency dismissed the formal complaint for untimely EEO
Counselor contact. According to the Agency, Complainant did not initiate EEO counseling until
August 9, 2019, approximately 133 days after the last date she worked the four-day, ten-hour day
schedule. The Agency reasoned that not being paid overtime or holiday pay were discrete acts.
Further, the Agency found that an EEO poster was on display and Complainant had previously
filed an EEO complaint so she was, or should have been, aware of the time limit. Alternatively,
the Agency dismissed the matter for failure to state a claim, finding that the issue is a collateral
attack on a Memorandum of Understanding between the union and Agency regarding modified
work week schedules. 	The matter should be raised with the Wage and Hour Division of the
Department of Labor, not the EEO process.
The instant appeal followed.
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. Howard v. Department of the Navy, EEOC
Request No. 05970852 (February 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.
In the instant case, Complainant had been working a four-day per week, ten-hour day schedule
since January 2016. She contends, however, that it was not until she learned that other employees
were filing EEO complaints for the non-payment of overtime and removal of their bid schedule
that she contacted an EEO Counselor. While she contends that she did not learn of the co-worker’s
complaint until August 28, 2019, Complainant also asserts on appeal that the time limit should
start when she first started her new (eight hour days) bid on March 30, 2019. 	These are not
sufficient reasons for extending or tolling the forty-five day time limitation.2
CONCLUSION
Accordingly, the Agency’s decision to dismiss the complaint was proper and is hereby
AFFIRMED.
2 In light of our determination when shall not consider whether the complaint was properly
dismissed on alternative grounds.

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STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if the Complainant or
the Agency submits a written request containing arguments or evidence which 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 to reconsider, with supporting statement or brief, must be filed with the Office of Federal
Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party shall have
twenty (20) calendar days of receipt of another party’s timely request for reconsideration in
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). All requests and arguments must be submitted to the Director, Office of Federal
Operations, Equal Employment Opportunity Commission. 	Complainant’s request may be
submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131
M Street, NE, Washington, DC 20507. 	In the absence of a legible postmark, the request to
reconsider shall be deemed timely filed if it is received by mail within five days of the expiration
of the applicable filing period. See 29 C.F.R. § 1614.604. The agency’s request must be submitted
in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). 	See 29 C.F.R. §
1614.403(g). The request or opposition must also include proof of service on the other party.
Failure to file within the time period will result in dismissal of your request for reconsideration as
untimely, unless extenuating circumstances prevented the timely filing of the request. 	Any
supporting documentation must be submitted with your 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.

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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 20, 2020
Date