[Redacted], Emmitt E., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency.

Equal Employment Opportunity Commission

Oct 28, 2021

Appeal No. 2021003683 (E.E.O.C. Oct. 28, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Emmitt E.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. Appeal No. 2021003683 Agency No. 4E800008321 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (“EEOC” or “Commission”) from the Agency's May 14, 2021, dismissal of his complaint of 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., 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 was employed by the Agency as a Postmaster, EAS-20, at the Agency’s Buena Vista Post Office, in Buena Vista, Colorado. On April 26, 2021, Complainant filed a Formal EEO Complaint alleging that the Agency subjected him to discrimination on the bases of race, sex (male), disability, age (56), and reprisal for prior protected EEO activity when, on several dates between January 2021 and March 2021, management changed Complainant’s leave status from Leave Without Pay (“LWOP”) to 086 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. 2021003683 2 Other Paid Leave (Administrative Leave), without his approval.2 The EEO Counselor’s report indicates that Complainant alleged that these unauthorized changes to his leave status may have affected his Office of Workers’ Compensation Programs (OWCP) claim. In response, the Agency’s Post Office Operations Manager (POOM) indicated that, on December 15, 2020, Complainant was issued a Proposed Removal and was placed on Administrative Leave (code 086) until he was issued a Notice of Decision, dated March 30, 2021, after which, he was no longer eligible for Administrative Leave and was placed on LWOP. The Agency dismissed the complaint, pursuant to 29 C.F.R. § 1614.107(a)(1), for failure to state a claim. In so doing, the Agency argued that the Commission has held that an employee placed on administrative leave pending the results of an ongoing investigation fails to state a claim. The Agency also noted that the Commission has no jurisdiction over the OWCP process. The instant appeal followed. On appeal, Complainant asserts that his OWCP benefits were impacted by his leave status and that “[his] complaint is that the agency did not have the right to change his leave status without informing [him].” Complainant also alleges that this was continued harassment by the Agency since March 2020. The Agency has not issued a statement in response. 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, .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 complainant cannot establish that s/he is aggrieved, the agency shall dismiss a complaint for failure to state a claim. 29 C.F.R. § 1614.107(a)(1). For allegations of reprisal, adverse actions need not qualify as "ultimate employment actions" or materially affect the terms and conditions of employment to constitute retaliation. Lindsey v. United States Postal Serv., EEOC Request No. 05980410 (Nov. 4, 1999). Instead, claims based on statutory retaliation clauses are reviewed “with a broad view of coverage. Under Commission policy, a complainant is protected from any retaliatory discrimination that is reasonably likely to deter… complainant or others from engaging in protected activity.” Maclin v. United States Postal Serv., EEOC Appeal No. 0120070788 (Mar. 29, 2007). 2 Complainant’s formal complaint only indicates his complaint as “Denial of LWOP” on a date in March 2021. The EEO Counselor’s report indicates the alleged events occurred on January 29, February 13, and March 13, 2021. 2021003683 3 Here, Complainant’s alleged harm is that continuing to be on paid administrative leave during the disciplinary process, as opposed to being on unpaid leave, negatively impacted his OWCP claim. The Commission has held that, depending on the circumstances, placement on paid administrative leave may or may not state a claim. In this case, the Commission finds that Complainant has not claimed a personal loss or harm regarding a term, condition, or privilege of employment sufficient to state a claim. Furthermore, in so far as Complainant is challenging actions directly related to the adjudication of his OWCP claim, he must raise such matters with the Department of Labor, not within the EEO complaint process. See, e.g., Fisher v. Dep't of Defense, EEOC Request No. 05931059 (July 15, 1994) (challenge to agency's appeal within the workers' compensation process fails to state a claim as an EEO complaint). The Commission has held that 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. United States Postal Service, EEOC Request No. 05940585 (September 22, 1994); Lingad v. United States Postal Service, EEOC Request No. 05930106 (June 25, 1993). The Commission also finds that the alleged actions, viewed broadly, are not reasonably likely to deter Complainant or others from engaging in protected activity. Accordingly, the Agency's final decision dismissing Complainant's 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 2021003683 4 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. 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. 2021003683 5 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 28, 2021 Date