[Redacted], Emery F., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency.Download PDFEqual Employment Opportunity CommissionFeb 10, 2022Appeal No. 2020005034 (E.E.O.C. Feb. 10, 2022) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Tomeka T.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. Appeal No. 2021004592 Agency No. 4E-890-0054-21 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated July 26, 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a City Carrier at the Agency’s Red Rock Vista Station in Las Vegas, Nevada. On June 23, 2021, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of race (Black/African American) and reprisal for prior protected EEO activity (Agency Complaint No. 4E-890-0038-20) when: 1. On March 2, 2021, Complainant’s request to attend the initial hearing conference in a prior complaint (EEOC Hearing No. 480-2021-0047X; Agency Complaint No. 4E-890- 0038-20) was not approved in a timely manner. 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. 2021004592 2 2. On March 11, 2021, management refused to approve two hours of Official Time to begin work on the EEO affidavit for Agency Complaint No. 4E-890-0005-21. The Agency dismissed these claims as an improper “spin-off” of a prior complaint pursuant to 29 C.F.R. §1614.107(a)(8), as well as an official time case. Complainant filed the instant appeal. On appeal, Complainant contends the Agency improperly dismissed her complaint as a “spin- off” of a prior complaint.2 Complainant states that her claims do not concern allegations of dissatisfaction with a processing of a prior complaint. Rather, she argues she is raising independent claims of unlawful retaliation that should be subjected to further review and redress. The Agency did not file a brief on appeal. ANALYSIS AND FINDINGS Spin-off Complaint EEOC Regulation 29 C.F.R. § 1614.107(a)(8) provides that an Agency shall dismiss claims alleging dissatisfaction with the processing of a prior complaint. Dissatisfaction with the EEO process must be raised within the underlying complaint, not as a new complaint. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Ch. 5, § III.F (as revised August 5, 2015). This is commonly referred to as a “spin-off” complaint. EEO MD-110 indicates further that “spin-off” complaints should be referred to the agency official responsible for complaint processing and/or processed as part of the original complaint. See id.; see also Complainant v. Dep't of Health and Human Servs., EEOC Appeal No. 05910159 (Feb. 11, 1991). Here, Claim 1 raises allegations of Agency misconduct in the processing of Complainant’s previously filed complaint (Agency Complaint No. 4E-890-0038-20/EEOC Hearing No. 480- 2021-0047X) when her request to attend the initial hearing conference on that complaint was not approved in a timely manner, although it appears from the record that she was, in fact, eventually approved to attend the conference. This is an allegation of dissatisfaction with the processing of that prior complaint. Therefore, it is a spin-off complaint. We have reviewed Complainant’s arguments on appeal and find that this claim was properly dismissed. We are not persuaded by 2 In Agency Case No. 4E-890-0038-20, Complainant filed a formal complaint on May 27, 2020, alleging that she was threatened, humiliated, and had her personal space invaded by the Manager of Customer Services, she was given an investigative interview and then issued a suspension, and she was put on emergency placement in an off-duty status without pay, effectively denying her a reasonable accommodation. The Agency issued a final decision finding no discrimination, which was affirmed by the Commission in Zoie C. v. U.S. Postal Serv., EEOC Appeal No. 2021003425 (Dec. 2, 2021). 2021004592 3 Complainant's argument that the fact that she is raising an allegation of retaliatory motivation allows her complaint to be processed as an independent claim. The appropriate place for Complainant to raise her claims of improper processing was within the adjudication of the original complaint. Official Time Claim EEOC Regulation 29 C.F.R. § 1614.605(b) provides the Agency shall give Complainant a reasonable amount of official time, if otherwise on duty, to prepare an EEO claim. The Commission has stated that an allegation pertaining to denial of official time states a separately- processable claim alleging violation of the Commission regulations and does not require determination of a discriminatory motive. See Edwards v. U.S. Postal Serv., EEOC Request No. 05960179 (Dec. 23, 1996). Allegations of denial of official time on EEO matters should not be processed in accordance with 29 C.F.R. 1614.108, since the inquiry is not motivation, but rather Agency justification of why it denied Complainant any amount of official time. Id. In Claim 2, Complainant alleges that the Agency denied her official time during a prior complaint. She indicated that on March 11, 2021, management refused to approve two (2) hours of Official Time to work on her EEO Investigative Affidavit for Agency Complaint No. 4E-890- 0005-21. Complainant concedes that her claim of the denial of Official Time was properly referred to the Agency official responsible for such complaints and, following an inquiry, a letter of determination was issued addressing the matter. However, Complainant contends the Agency’s determination was insufficient because it did not explain the Agency’s reasoning. In her prior complaint (Agency Complaint No. 4E-890-0005-21), the Agency issued a FAD on the merits concluding no discrimination was established, but the FAD did not also address the denial of Official Time. Complainant appealed the FAD to the Commission. In her brief in that appeal, Complainant raised, among other things, the issue that she had been denied her request for Official Time to begin work on the EEO Investigative Affidavit in Agency Case No. 4E-890-005-21. However, the appellate decision did not address this issue in its appellate decision, Carrie S. v. U.S. Postal Serv., EEOC Appeal No. 2021003779 (Dec. 2, 2021). Subsequently, Complainant filed a Request for Reconsideration, which is currently pending before the Commission as EEOC Request No. 2022001050. We find that Claim 2 in the current complaint states the same claim that is pending before the Commission in Request for Reconsideration No. 2022001050. Therefore, Claim 2 in the instant complaint must be dismissed pursuant to 29 C.F.R. § 1614.107(a)(1). 2021004592 4 CONCLUSION Accordingly, the Agency's dismissal of the complaint is AFFIRMED. 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. 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. 2021004592 5 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 (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 February 10, 2022 Date Copy with citationCopy as parenthetical citation