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

Equal Employment Opportunity Commission

Jun 3, 2021

Appeal No. 2021002082 (E.E.O.C. Jun. 3, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Arleen L.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Pacific Area), Agency. Appeal No. 2021002082 Agency No. 4F-967-0024-20 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated January 11, 2021, dismissing her complaint alleging 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Sales and Services/Distribution Associate, PS-07, at the Agency’s Honokaa Post Office in Honokaa, Hawaii. On December 14, 2021, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of disability, age, and reprisal for prior protected EEO activity when: 1. On or about October 11, 2019 Complainant inquired about her chances of becoming a regular clerk. Complainant’s postmaster yelled the “cons” of being a 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. 2021002082 2 regular clerk in an intimidating way. Complainant felt bullied, intimidated and threatened by her postmaster’s aggressive tone and body language. 2. Beginning on or about October 11, 2019, Complainant’s postmaster stated that he would make it so that there was no room for a regular position in the office so that Complainant would not have a position and would not be assigned to an office. 3. On or about October 19, 2019 through October 21, 2019 Complainant’s access to Outlook and her USPS email address were revoked. 4. On or about November 10, 2019, Complainant’s access to the Time Attendance Control System (TACS) was revoked, and on or about November 12, 2020, her access to the Scan Point Management System (SPMS) was revoked including her access to other USPS programs. 5. On or about November 27, 2019, Complainant became aware of being detailed to the Hawi Post Office. 6. On or about December 12, 2019 and December 16, 2019 Complainant was required to work at the Keaau Post Office. 7. On or about December 12, 2019, Complainant’s request for leave was not granted. 8. On or about January 7, 2020, Complainant was not properly notified to report to the Honokaa Post Office to work for training. 9. During the weeks of April 11, 2020 through April 17, 2020 and April 18, 2020 through April 24, 2020 Complainant was given less work hours than her coworkers at her assigned office. 10. On July 22, 2020 Complainant was scheduled for an investigative interview. 11. On July 22, 2020 Complainant was charged Absent Without Leave (AWOL). 12. On July 24, 2020 Complainant received a letter to report for an investigative interview on July 28, 2020 and on July 27, 2020, she was told to discard the letter. 13. On or about July 28, 2020 Complainant was given instructions to tell the postmaster whenever she was going to the doctor and to call him personally or come in person to give him any documentation. 14. On or about August 12, 2020, Complainant was scheduled for an investigative interview. 15. On or about August 14, 2020, when Complainant called to request sick leave she was told that they would tell the postmaster. 16. On or about August 21, 2020 the postmaster requested Complainant’s medical information. 17. On or about August 22, 2020, Complainant was issued a Letter of Warning dated August 11, 2020. 18. On or about September 11, 2020, Complainant was harassed by the postmaster when she was given instructions to call the postmaster after her doctor’s appointment, and not to send an email. 19. On or about November 2, 2020, Complainant was informed that management was controverting her on-the-job-injury claim. 2021002082 3 The Agency dismissed the complaint, pursuant to 29 C.F.R. § 1614.107(a)(2), due to the untimely filing of the formal complaint. In so doing, the Agency found Complainant received the Notice of Right to File a Discrimination Complaint (Notice) on November 27, 2020, at her attorney’s address on record and filed her formal complaint on December 15, 2020, which was beyond the 15-day regulatory filing deadline. Additionally, the Agency dismissed claim 19, which concerns an on-the-job injury, for failure to state a claim under 29 C.F.R. 1614.107(a)(1). In its dismissal, the Agency noted that this matter feel within the adjudicatory jurisdiction of the Office of Workers Compensation Programs (OWCP), Department of Labor, and did not state a claim within the EEOC’s jurisdiction. The Agency indicated that it had the right to controvert Complainant’s on-the-job injury claim so long as it does not do so for prohibited discriminatory reasons. The instant appeal followed. On appeal, Complainant, through her attorney, argues that she did not receive the Notice until November 30, 2020, thus her formal complaint filed on December 15, 2020, was timely. The Agency submitted a statement in response. 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 the notice of the right to do so. The instant record contains a copy of a Notice of Right to File Individual Complaint, dated November 23, 2020, addressed to Complainant. The Notice informed Complainant that she had to file a formal complaint within 15 calendar days of receipt of the Notice. On January 11, 2021, the Agency dismissed her formal complaint on the basis that it was not timely filed. According to the Agency, its review of the Postal Service’s official Track and Confirm database (mail tracking receipt 9410 8036 9330 0129 6594 40) shows the Notice was delivered to Complainant’s attorney by mail on November 27, 2020, and “signed for by CC.” In its dismissal, the Agency found that Complainant filed her formal complaint on December 15, 2020, which was 18 days after receipt of Notice and consequently beyond the time period established by 29 C.F.R. § 1614.106. On appeal, Complainant concedes that her for formal complaint was filed on December 15, 2020, by mail submission through her attorney. However, Complainant argues the filing was filed within the fifteen-day time requirement because her attorney received the Notice on November 30, 2020, and not November 27, 2020 as alleged by the Agency. Complainant submitted an affidavit from her attorney stating that it was impossible for anyone at his law firm to receive the Notice on November 27, 2020, because the firm was closed for the Thanksgiving holiday season. He further stated that neither he nor anyone in his firm signed for a package on November 27, 2020. 2021002082 4 Noting the Agency's tracking document indicated that someone signed for the Notice with the initials CC, Complainant’s attorney stated that all mail received at his firm is received by administrative staff and none of the administrative staff members have the initials CC. In addition, he stated that when administrative staff sign for receipt of mail, they do so by signing their own name, not the name or initials of anyone else within the law firm. To further support this argument, Complainant submitted an additional affidavit from the office manager at the law firm, confirming that the law firm did not reopen until November 30, 2020, at which time the Notice was received by administrative staff and stamped with a receipt date of November 30, 2020. The Agency “always bears the burden of obtaining sufficient information to support a reasoned determination as to timeliness.” Guy v. Dep't of Energy, EEOC Request No. 05920703 (Jan. 4, 1994) (quoting Williams v. Dep't of Defense, EEOC Request No. 05920506 (Aug. 25, 1992)). See also Ericson v. Dep't of the Army, EEOC Request No. 05920623 (Jan. 14, 1993). Further, in Ericson v. Department of the Army, EEOC Request No. 05920623 (January 14, 1993), the Commission found that “the Agency has the burden of providing evidence and/or proof to support its final decisions.” See also Gens v. Department of Defense, EEOC Request No. 05910837 (January 31, 1992). Despite the Agency’s argument, it is not clear that the Notice was in fact received on November 27, 2020. The U.S Postal Service Tracking statement shows that an item was delivered to Dallas, TX on November 27, 2020, at 11:06 am, but it does not contain a street address. The Commission has previously found that a generalized reference to a city and zip code, without further details of the address, is insufficient evidence of receipt by Complainant. See Complainant v. United States Department of Agriculture (Forest Services), EEOC Appeal No. 0120172673 (June 26, 2018); Candell v. United States Postal Service, EEOC Appeal No. 0120071404 (March 20, 2007). As for the signature obtained at delivery of the Notice, the Agency identifies a signature by “CC.” The initials “CC” are insufficient to establish receipt as we cannot discern who signed for the package. Complainant’s attorney and the firm’s office manager have stated that it was impossible for anyone at firm to sign for a package on November 27, 2020, because the firm was closed for the Thanksgiving holiday season. In addition, the office manager stated that the Notice was received by administrative staff on November 30, 2020. The Agency has not produced any evidence to dispute the statements. In the absence of such evidence, we decline to conclude that Complainant’s attorney and the firm’s office manager lied when they stated the firm did not receive the Notice on November 27, 2020. As such, we conclude that the record does not adequately support the Agency’s dismissal for untimely filing of the formal complaint. Turning to the Agency’s dismissal of claim 19, we find the Agency properly dismissed Complainant’s claim that the Agency controverted her on-the-job injury claim. This claim falls squarely under OWCP adjudicatory jurisdiction. Thus, the proper forum for Complainant to have raised her concerns is within the OWCP adjudicatory process and not through the administrative EEO complaint process. See e.g., Pirozzi v. Department of the Navy, EEOC Request No. 05970146 (Oct. 23, 1998); Abiuso v. U.S. Postal Service, EEOC Appeal No. 0120100241 (Oct. 5, 2010). Therefore, claim 19 was properly dismissed by the Agency for failure to state a claim. 2021002082 5 CONCLUSION Based on a thorough review of the record and the contentions on appeal, the Agency’s dismissal is AFFIRMED in part and REVERSED in part. The Agency’s dismissal of claim 19 is AFFIRMED. The Agency's final decision dismissing Complainant's remaining harassment and discrimination claims is REVERSED and REMANDED to the Agency for further processing in accordance with this decision and the Order below. ORDER (E0618) The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. § 1614.108 et seq. The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision was issued. The Agency shall issue to Complainant a copy of the investigative file and also shall notify Complainant of the appropriate rights within one hundred fifty (150) calendar days of the date this decision was issued, unless the matter is otherwise resolved prior to that time. If the Complainant requests a final decision without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of Complainant’s request. As provided in the statement entitled "Implementation of the Commission's Decision,” the Agency must send to the Compliance Officer: 1) a copy of the Agency’s letter of acknowledgment to Complainant, 2) a copy of the Agency’s notice that transmits the investigative file and notice of rights, and 3) either a copy of the complainant’s request for a hearing, a copy of complainant’s request for a FAD, or a statement from the agency that it did not receive a response from complainant by the end of the election period. IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. If the Agency does not comply with the Commission’s order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission’s order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled “Right to File a Civil Action.” 29 C.F.R. §§ 1614.407 and 1614.408. 2021002082 6 A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. 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. 2021002082 7 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 (T0610) This decision affirms the Agency’s final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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 June 3, 2021 Date