[Redacted], Celine D., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency.

Equal Employment Opportunity Commission

Oct 20, 2021

Appeal No. 2021003410 (E.E.O.C. Oct. 20, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Celine D.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 2021003410 Hearing No. 461-2020-00048X Agency No. 4G-700-0183-18 DECISION Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated May 6, 2021, dismissing her 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 At the time of events giving rise to this complaint, Complainant worked as a Rural Carrier Associate at the Agency’s Betrand Station in Lafayette, Louisiana. On December 10, 2018, Complainant filed a formal EEO complaint. The Agency initially characterized the issues in the complaint as alleging that the Agency subjected Complainant to discrimination on the bases of race (Black), sex (female), and age when: 1. On or about February 27, 2014, Complainant was placed on indefinite suspension. 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. 2021003410 2 2. On or about March 21, 2014, Complainant was issued a notice of removal for unacceptable conduct with an effective date of April 28, 2014. The removal notice was subsequently rescinded by letter dated June 27, 2014. The Agency dismissed the entire complaint, pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO counselor contact. In addition, claim (2) was dismissed for failure to state a claim. Complainant appealed the Agency’s dismissal to this Commission. In EEOC Appeal No. 2019002842 (July 18, 2019), we determined that the Agency had mischaracterized Complainant’s claims, noting that a fair reading of the record showed that Complainant had been on indefinite suspension since June 2014, after being charged and prosecuted for a crime. However, on August 28, 2018, Complainant was found not guilty of all charges and, subsequently, sought reinstatement to work, but the Agency refused to bring her back. Therefore, we found that Complainant’s complaint concerned the Agency’s refusal, in August and September 2018, to end the suspension and reinstate Complainant after she was cleared of all criminal charges. Since the Agency’s refusal to reinstate her in 2018 was within the 45-day limitation period, we concluded that Complainant’s EEO contact was timely and remanded the redefined complaint to the Agency for continued processing. On November 6, 2019, the Agency concluded its investigation of the remanded complaint. The Agency provided Complainant with a copy of the report of investigation and informed her of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant requested a hearing before an AJ. On April 3, 2020, the Agency submitted a motion to dismiss the complaint, arguing that the complaint was an impermissible collateral attack on the negotiated union grievance process and was also rendered moot by a settlement reached in that forum. Complainant submitted an opposition memorandum, but the AJ found it unpersuasive and granted the Agency’s motion to dismiss. On May 6, 2021, the Agency issued its final order adopting the AJ’s dismissal on those grounds. The instant appeal followed. On appeal, Complainant, through her attorney, submits several arguments, including that the Agency miscategorized her claim, that she is challenging the Agency’s racial bias, and that Complainant was misled when she signed the grievance. Complainant also contends that she has not obtained the relief that she requested in her complaint. The Agency submitted a brief in response, essentially reiterating its arguments that the complaint is a collateral attack on the grievance process and that the complaint was moot because Complainant returned to work and received monetary compensation. 2021003410 3 ANALYSIS AND FINDINGS EEOC’s regulations at 29 C.F.R. § 1614.107(a)(5) provide for the dismissal of an EEO complaint when the issues raised have been rendered moot. To determine whether the issues raised in a complaint are moot, the factfinder must ascertain whether: (1) it can be said with assurance that there is no reasonable expectation that the alleged violation will recur, and (2) interim relief or events have completely and irrevocably eradicated the effects of the alleged discrimination. See County of Los Angeles v. Davis, 440 U.S. 625, 631 (1979). When such circumstances exist, no relief is available and no need for a determination of the rights of the parties is presented. Here, the record shows that Complainant filed a union grievance regarding the Agency’s refusal to reinstate her in August-September 2018, the very issue also raised in her EEO complaint. On May 31, 2019, the grievance was formally settled at Step 3 of the negotiated grievance procedure. The settlement agreement indicates that the Agency did not schedule Complainant for work after receipt of notification that she was found not guilty of the criminal charges at issue. In the settlement, the Agency agreed to return Complainant to duty and compensate Complainant for its failure to return her to work by paying her a lump sum of $6,673.84. Complainant acknowledges that she was reinstated to work on June 2, 2019. The record also includes evidence showing Complainant was paid the lump sum amount due under the settlement. Here, we concur with the AJ’s determination that the grievance settlement has rendered the EEO complaint moot. The record establishes that although Complainant’s discrimination claims were not part of the related grievance, the effects of the alleged discrimination have been eradicated. It is undisputed that Complainant has been returned to work. Moreover, a fair reading of the settlement document indicates that the lump sum payment was to compensate Complainant for the harm she suffered by not being returned to work in 2018 after her criminal acquittal. Complainant now argues that she is entitled to additional relief because she was on suspension since 2014. However, we have already decided in EEOC Appeal No. 2019002842 that this complaint is limited to the issue of the Agency’s failure to reinstate Complainant in 2018 following her acquittal and we will not now consider Complainant’s application for relief for the earlier indefinite suspension. In the grievance settlement, Complainant agreed to accept the lump sum payment as compensation for the harm caused her in 2018. We conclude that Complainant has accepted her reinstatement and lump sum payment as the measure of the harm caused her in 2018. As such, we conclude that the grievance settlement has rendered the EEO complaint moot. Complainant has been returned to work, so there is no reasonable expectation that the alleged violation will recur, and the settlement eradicated the effects of the failure to reinstate her in 2018 (the alleged discrimination). Complainant also argues that she was misled in agreeing to the settlement. However, any deficiencies in the grievance and/or settlement should have been addressed during the negotiated grievance process. An employee cannot use the EEO complaint process to lodge a collateral attack on another adjudicatory proceeding. See Wills v. Department of Defense, EEOC Request No. 05970596 (July 30, 1998); Kleinman v. U.S. Postal Service, EEOC Request No. 05940585 2021003410 4 (September 22, 1994); Lingad v. U.S. Postal Service, EEOC Request No. 05930106 (June 24, 1993). CONCLUSION Accordingly, the Agency's decision to dismiss the complaint is AFFIRMED. 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). 2021003410 5 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 October 20, 2021 Date