[Redacted], Carter W., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency.Download PDFEqual Employment Opportunity CommissionDec 2, 2021Appeal No. 2021004648 (E.E.O.C. Dec. 2, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Carter W.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. Appeal No. 2021004648 Agency No. 1C-271-0019-21 DECISION Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated July 30, 2021, dismissing a formal 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. BACKGROUND During the period at issue, Complainant worked as a Maintenance Mechanic, Grade Level 7, at the Agency’s Processing and Distribution Center (PD&C) in Greensboro, North Carolina. On April 10, 2021, Complainant initiated EEO Counselor contact. Informal efforts at resolution were not successful. On July 23, 2021, Complainant filed a formal EEO complaint alleging that the Agency subjected him to discrimination on the bases of race (African American), sex (male), religion (Christian), color (Black), and in reprisal for EEO-protected activity. 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 2021004648 On July 30, 2021, the Agency issued a final decision. Therein, the Agency determined that the formal complaint was comprised exclusively of the following claim: On February 9, 2021, Complainant was issued a Letter of Warning (LOW). The Agency dismissed the formal complaint for untimely EEO counselor contact. The Agency reasoned that the LOW was issued on February 9, 2021, but that Complainant had not contacted an EEO Counselor until April 10, 2021. The instant appeal followed. ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R. §1614.107(a)(2) mandates that a discrimination complaint that fails to comply with the applicable time limits shall be dismissed. 29 C.F.R. § 1614.105(a)(1) requires that claims of discrimination should be brought to the attention of an EEO Counselor within 45 calendar days of the date of the matter alleged to be discriminatory or within 45 calendar days of the effective date of a personnel action. The Agency must present sufficient evidence to support its dismissal for untimely EEO contact. Guy v. Dep’t of Energy, EEOC Request No. 05930703 (Jan. 4, 1994). Here, the Agency did not do so with respect to the issuance of the LOW. The record lacks a contemporaneous copy of the adverse action that it asserts was issued to Complainant on February 2021. Instead, Agency’s EEO Contact Summary that was dated April 2021, indicated that Complainant was issued “a disciplinary warning” which could also be interpreted as an informal verbal warning or a proposed letter of warning. Moreover, the record contains what appears to be a March 2021 record of a union grievance stating that Complainant’s LOW would be reduced to an informal discussion. Lacking a copy of LOW dated February 9, 2021, delineating whether the “LOW” was proposed or executed, the Agency has not shown the effective date of the LOW now on appeal. The only evidence of the LOW is an action subsequent to the action which is the subject of this complaint, which is undated and describes misconduct on July 13, 2021, which Complainant apparently refused to sign on July 16, 2021. Because of evidentiary inconsistency about the effective date of the adverse action, and the nature of the adverse action we must find the Agency’s dismissal improper. Furthermore, upon review of this entire record, the Commission finds that, in addition to the LOW claim discussed above, Complainant has also stated a broader discriminatory hostile work environment claim for purposes of C.F.R. § 1614.107(a)(1). Under 29 C.F.R. §§ 1614.103, 1614.106(a), the Agency must accept a justiciable claim that an aggrieved employee has been subjected to discrimination based on EEO-protected characteristics or because of EEO-protected activities. 3 2021004648 We find that Complainant has also claimed other employment harm in the narratives accompanying and captured within EEO counseling report and in the formal complaint. Diaz v. Dep’t of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994). The Agency should not ignore the “pattern aspect” of Complainant’s claim and should not define the issues in a piecemeal manner when there is a theme uniting discrete matters within a complaint. Meaney v. Dep’t of the Treasury, EEOC Request No. 05940169 (Nov. 3, 1994). By alleging actions that are part of a pattern of harassment, Complainant has stated another cognizable claim under the EEOC regulations. Cervantes v. U.S. Postal Serv., EEOC Request No. 05930303 (Nov. 12, 1993). Specifically, we have observed that, in addition to the LOW allegation, Complainant has also raised a accused management of surveillance, to include unsafe encroachment into personal space (i.e. the “six-foot-rule”), targeted enforcement of a lunch schedule, and acting in a manner that unnecessarily disclosed disciplinary issues to coworkers on the PD&C floor area. CONCLUSION The Agency's final decision dismissing the formal complaint is REVERSED. The formal complaint is REMANDED to the Agency for further processing, as defined as a harassment claim in addition to the claim regarding the Letter of Warning 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 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 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 Complainant’s request for a hearing, a copy of complainant’s request for a final Agency decision, 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. 4 2021004648 Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. 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 Complainant and his representative. If the Agency does not comply with the Commission’s order, Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). 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. 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, 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 Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. 29 C.F.R. § 1614.409. Failure by the 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. 29 C.F.R. § 1614.405; EEO Management Directive for 29 C.F.R. Part 1614 at Ch. 9 § VII.B (Aug. 5, 2015). Complainant should submit his request for reconsideration, and any statement or brief in support of his request, via the EEOC Public Portal, which can be found at: https://publicportal.eeoc.gov/Portal/Login.aspx 5 2021004648 Alternatively, Complainant can submit his request and arguments to the Director, OFO, EEOC, via regular mail addressed to P.O. Box 77960, Washington DC 20013, or by certified mail addressed to 131 M St. 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. 29 C.F.R. § 1614.604. The Agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). 29 C.F.R. § 1614.403(g). Either party’s request 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. 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. 6 2021004648 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 December 2, 2021 Date Copy with citationCopy as parenthetical citation