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

Equal Employment Opportunity Commission

Dec 21, 2021

Appeal No. 2021005178 (E.E.O.C. Dec. 21, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Maricruz Y.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 2020004138 Agency No. 4G-330-014420 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated June 8, 2020, dismissing a formal 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND During the period at issue, Complainant worked as a Clerk, GS-6, at the Agency’s Fort Pierce Post Office in Fort Pierce, Florida. On February 10, 2020, Complainant initiated EEO Counselor contact. Informal efforts to resolve her concerns were unsuccessful. On May 26, 2020, Complainant filed a formal complaint claiming that the Agency subjected her to discriminatory harassment based on disability and in reprisal for prior protected EEO activity when: 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. 2020004138 2 1. from November 25, 2018 to August 2, 2019, Complainant was not accommodated per her medical restrictions when she was not permitted to work; 2. on a date not specified, Complainant’s work start time was changed by thirty (30) minutes; 3. on dates not specified, management monitored Complainant’s bathroom breaks, who Complainant spoke to, and the length of Complainant’s pants; 4. on dates not specified, Complainant’s Leave and Change of Schedule (COS) request were denied; 5. on dates not specified, Complainant was required to do more work than her co- workers and when Complainant complained, management invited Complainant to quit; 6. from December 19, 2019, to on or around May 5, 2020, Complainant was not accommodated per her medical restrictions when she was not permitted to work; 7. on March 25, 2020, Complainant was told to get out of the building; and 8. on or around December 19, 2019, management did not correctly process Complainant’s Office of Worker’s Compensation (OWCP) paperwork. On June 8, 2020, the Agency issued a final decision. The Agency dismissed the formal complaint on three procedural grounds. First, the Agency dismissed the formal complaint pursuant to 29 C.F.R. § 1614.107(a)(2), finding that the formal complaint was untimely filed. The Agency reasoned that Complainant received the Notice of Right to File a Formal Complainant (Notice) on May 7, 2020. The Agency found, however, that Complainant did not file her formal complaint until May 26, 2020, which it found to be well beyond the 15-day filing period. Second, the Agency dismissed claim 1, pursuant to 29 C.F.R. § 1614.107(a)(2), on the alternative grounds of untimely EEO Counselor contact. Finally, the Agency dismissed claim 8, on the alternative grounds of failure to state a claim, pursuant to 29 C.F.R. § 1614.107(a)(1). Specifically, the Agency found claim 8 constituted a collateral attack on the Department of Labor’s OWCP process. The instant appeal followed. On appeal, Complainant argues that she did not have a good understanding of the EEOC process regarding filing deadlines. Complainant further argues that the Notice was signed for and placed in her mailbox by the mail carrier and was not signed for by her or any member of her household. 2020004138 3 Consequently, Complainant states that she did not receive the Notice on May 7, 2020 as the Agency alleges. Complainant explains that she calculated the return date for her formal complaint from the date she retrieved the Notice from her mail box, not the date the Notice was delivered. Finally, Complainant disputes that claim 8 is a complaint against OWCP. Rather, Complainant states that this claim relates to management’s lack of timely processing necessary paperwork required for OWCP processing. ANALYSIS AND FINDINGS Untimely Formal Complaint - Claims 1 though 8 The regulation set forth at 29 C.F.R. § 1614.107(a)(2) states, in pertinent part, that an Agency shall dismiss a complaint which fails to comply with the applicable time limits contained in 29 C.F.R. § 1614.106, which, in turn, requires the filing of a formal complaint within fifteen (15) days of receiving notice of the right to do so. The Agency improperly dismissed the instant formal complaint. Specifically, the Agency does not include adequate mail confirmation in the record to support a determination that Complainant received the Notice on May 7, 2020, as the Agency determined. The tracking information in the record reflects that the Notice was delivered to Complainant’s home address on May 7, 2020. Complainant asserts on appeal, that neither she nor a member of her household signed for the Notice on May 7, 2020, and therefore, she was not aware that the Notice was delivered on May 7, 2020. A receipt of a document at a complainant’s address by a member of complainant’s family or household of suitable age and discretion constitutes constructive receipt by a complainant. Baunchand v. U.S. Postal Service, EEOC, Request No. 05920389 (May 28, 1992) (citing Fischer v. U.S. Postal Service, EEOC Request No. 05900389 (May 3, 1990). In this case, the tracking confirmation confirms, that the Notice was signed by an individual identified as “MC.” Complainant asserts that MC was the mail carrier who signed for the document and placed the Notice in Complainant’s mail box. Therefore, we find that there is insufficient evidence in the record to conclude that Complainant’s formal complaint was untimely filed. Where, as here, there is an issue of timeliness, "[a]n agency always bears the burden of obtaining sufficient information to support a reasoned determination as to timeliness." Guy v. Department of Energy, EEOC Request No. 05930703 (January 4, 1994) (quoting Williams v. Department of Defense, EEOC Request No. 05920506 (August 25, 1992)). Untimely EEO Counselor Contact - Claim 1 The record reflects that the Agency improperly dismissed claim 1 on the alternative grounds of untimely EEO Counselor contact. Complainant initiated EEO Counselor contact on February 10, 2020. 2020004138 4 The Commission has held that “[b]ecause the incidents that make up a hostile work environment claim collectively constitute one unlawful employment practice, the entire claim is actionable, as long, as at least one incident that is part of the claim occurred within the filling period. This includes incidents that occurred outside of the filing period that the [Complainant] knew or should have known were actionable at the time of their occurrence.” EEOC Compliance Manual, Section 2, Threshold Issues at 2 - 75 (revised July 21, 2005) (citing National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 117 (2002)). The formal complaint reflects that Complainant alleged that the Agency subjected her to a hostile work environment. The other incidents (claims 2 through 8) comprising Complainant’s hostile work environment claim occurred during the 45-day time period preceding Complainant’s February 10, 2020 EEO Counselor contact, as discussed above. Because a fair reading of the record reflects that the matter identified in claim 1 is part of that harassment claim, we find that the Agency improperly dismissed this claim on the grounds of untimely EEO Counselor contact. Therefore, we reverse the Agency’s dismissal of claim 1 for untimely EEO Counselor contact. Collateral Attack - Claim 8 The Agency properly dismissed claim 8 for failure to state a claim. A complaint shall be dismissed for failure to state a claim where the complainant impermissibly uses the EEO complaint process to lodge a collateral attack on another forum's proceeding. A claim that can be characterized as a collateral attack, by definition, involves a challenge to another forum's proceeding, such as the grievance process, the workers' compensation process, an internal agency investigation, or state or federal litigation. See Fisher v. Dep't of Defense, EEOC Request No. 05931059 (July 15, 1994). Accordingly, the proper forum for a complainant to raise challenges to her OWCP claim, as set forth in claim 8, is within that process itself because any remedial relief available to Complainant would be through the OWCP. There is no remedial relief available to Complainant on this matter through the EEO complaint process. CONCLUSION We AFFIRM the Agency's final decision dismissing claim 8 and REVERSE the dismissal of claims 1 through 7, and REMAND those claims for further processing pursuant to the following ORDER. ORDER (E0618) The Agency is ordered to process the remanded claims (1 through 7) in accordance with 29 C.F.R. § 1614.108 et seq. The Agency shall acknowledge to the 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 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. 2020004138 5 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. 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. 2020004138 6 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0620) The Commission may, in its discretion, reconsider this appellate decision if the 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, 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). 2020004138 7 COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (T0610) This decision affirms the Agency’s final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. 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 your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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 6, 2020 Date