[Redacted], Bart M, 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity Commission

Feb 9, 2022

Appeal No. 2022000610 (E.E.O.C. Feb. 9, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Bart M,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service, Agency. Appeal No. 2022000610 Agency No. 4B-060-0112-21 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated October 7, 2021, 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 the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND During the relevant time, Complainant worked for the Agency as a Postmaster in Mansfield Center, Connecticut. On September 7, 2021, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination based on race (biracial) and age (61) when, on July 26, 2021, management attached his discipline letter to an email that was sent out to the Connecticut District email distribution list. On October 7, 2021, the Agency issued a final decision dismissing the formal complaint pursuant to EEOC Regulation 29 C.F.R. § 1614.107 (a)(1) for failure to state a claim. The Agency determined that Complainant failed to demonstrate that he was harmed with respect to the terms and conditions of his employment. 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. 2022000610 2 The Agency further found that Complainant's complaint alleged a violation of the Privacy Act and that the claim was not within the purview of the EEO complaint process. This appeal followed. On appeal, Complainant’s attorney argued that the Agency's dismissal for failure to state a claim was improper and that the Agency's decision addressed the merits of Complainant's claim without a proper determination of whether the instant matter states a claim of discrimination. ANALYSIS AND FINDINGS Under the regulations set forth at 29 C.F.R. Part 1614, an agency shall accept a complaint from an aggrieved employee or applicant for employment who believes that he or 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, 1614.106(a). 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). If a complainant cannot establish that he or she is aggrieved, the agency shall dismiss a complaint for failure to state a claim. 29 C.F.R. § 1614.107(a)(1). Here, the agency dismissed Complainant's complaint regarding the issuance of Complainant’s discipline letter via an email distributed to the Agency's entire Connecticut District, on the grounds that this matter addresses a Privacy Act violation and is not, therefore, within the purview of the EEO complaint process. We acknowledge that jurisdiction over alleged violations of the Privacy Act rests exclusively with the United States District Courts, and that, for this reason, challenges under the Privacy Act in this forum do not state a claim. See Card v. USPS, EEOC Appeal No. 01953767 (October 18, 1995). However, in this case, Complainant's claim relating to the issuance of the discipline letter is not a “challenge” under the Privacy Act. The record reflects, instead, that Complainant does not identify the instant matter as a violation of the Privacy Act; that neither his initial counseling intake or his formal complaint refer to the Privacy Act; and that it is the Agency, instead, that has identified Complainant's allegation in this context. We determine that Complainant should not be denied the right to challenge the Agency's conduct in issuing his letter of discipline in the manner in which it did, which we find states a viable claim. In so finding, we note that Complainant's attorney argues further on appeal that while the Agency further determined that Complainant was “embarrassed by the actions of management,” the Agency nevertheless concluded that the claim was not severe or pervasive and did not rise to the level of actionable harassment. We determine, however, that Complainant has stated a claim addressing a loss or harm to a term, condition, or privilege of Complainant’s employment. 2022000610 3 Specifically, the only proper questions in determining whether an allegation is within the purview of the EEO process are: (1) whether the complainant is an aggrieved employee and (2) whether he has alleged employment discrimination covered by the EEO statutes. An employee is “aggrieved” if he has suffered direct and personal deprivation at the hands of the employer. See Hobson v. Department of the Navy, EEOC Request No. 05891133 (March 2, 1990). Here, Complainant alleged that he was improperly issued a letter of discipline. Complainant's claim is sufficient to render him an aggrieved employee. Because Complainant has alleged that the adverse action was based on race, and age, he has raised an allegation within the purview of the EEOC regulations. CONCLUSION The Agency's final decision dismissing the formal complaint is REVERSED. The complaint is 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 claim in accordance with 29 C.F.R. § 1614.108. The Agency shall acknowledge to the Complainant that it has received the remanded claim 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. 2022000610 4 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. 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. 2022000610 5 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 (R0610) This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. 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 filed your appeal with the Commission. 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. 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. 2022000610 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 February 9, 2022 Date