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

Equal Employment Opportunity Commission

Jul 21, 2021

Appeal No. 2021002935 (E.E.O.C. Jul. 21, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Henry S.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. Appeal No. 2021002935 Agency No. 1E-571-0006-21 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated March 15, 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., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND During the period at issue, Complainant worked as a Laborer Custodian, GS-04, at the Agency’s Processing and Distribution Center in Billings, Montana. On February 16, 2021, Complainant filed a formal EEO complaint claiming that the Agency discriminated against him based on religion and age when, beginning in October 2019, management removed Complainant’s religious accommodations and subsequently, on September 21, 2020, Complainant was removed from the Postal Service. On March 15, 2021, the Agency issued a final decision dismissing the formal complaint, pursuant to 29 C.F.R. § 1614.107(a)(4), finding that Complainant elected to appeal the same claims to the Merit Systems Protection Board (MSPB). 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. 2021002935 2 The record indicates that on November 2, 2020, Complainant filed an appeal with the MSPB regarding his separation from the Agency (MSPB No. DE-0752-21-0033-I-1). On December 15, 2020, the MSPB issued an initial decision and dismissed the MSPB appeal for being untimely filed without a showing of good cause for the delay. The instant appeal followed. On appeal, Complainant argues that that he did not first elect to pursue the same claim with the MSPB. Rather, Complainant argues that on November 2, 2020, he filed his MSPB complaint and he also contacted the EEO Counselor on the same day. Complainant explains that he had to complete the EEO pre-complaint process first which resulted in him filing his formal EEO complaint on February 16, 2021. Finally, Complainant argues that the MSPB dismissed his complaint and did not issue a decision on the merits. ANALYSIS AND FINDINGS Termination Claim A mixed case complaint is a complaint of employment discrimination filed with a federal agency, related to or stemming from an action that can be appealed to the Merits Systems protection Board (MSPB). 29 C.F.R. § 1614.302(a)(1). An aggrieved person may initially file a mixed case complaint with an agency or may file a mixed case appeal directly with the MSPB, pursuant to 5 C.F.R. § 1201.151, but not both. 29 C.F.R. § 1614.302(b). 29 C.F.R. § 1614.107(a)(4) provides that an agency shall dismiss a complaint where the complainant has raised the matter in an appeal to the MSPB and 29 C.F.R. § 1614.302 indicates that a complainant has elected to pursue the non-EEO process. The record reflects that Complainant elected to proceed before the MSPB, filing an appeal with the MSPB on November 2, 2020, several months prior to filing the instant formal EEO complaint in February 2021. While Complainant initially contacted an EEO counselor on November 2, 2020, his election is made between an MSPB appeal and the filing of a formal EEO complaint, not his EEO counseling contact. Deangelo C. v. Department of Homeland Security, EEOC Appeal No. 0120152120 (November 13, 2015) (election occurs with filing of the MSPB appeal or the formal EEO complaint, not initiating EEO counseling). Here, the MSPB issued its decision on his appeal in December 2020, well before Complainant even filed his formal EEO complaint in February 2021. The fact that the MSPB dismissed the complaint as untimely filed rather than addressing the merits of Complainant’s discrimination claims does not negate the propriety of the dismissal pursuant to 29 C.F.R. § 1614.107(a)(4). See, e.g., Cardozo v. Department of Homeland Security, EEOC Appeal No. 07A30014 (June 2, 2004) (upholding the dismissal of an EEO complaint based on a valid election to proceed first through an MSPB appeal even when that appeal was later dismissed by the MSPB as untimely). Religious Accommodation Claim 2021002935 3 Complainant also alleged that Agency management removed a long-standing religious accommodation. According to the EEO counseling report, Complainant claimed he had been accommodated since 1997 by being allowed to enter Agency premises without a badge due to his religious beliefs. However, he stated that starting in October 2019 he was instructed to use his badge to enter the building. The MSPB does not have jurisdiction over claims of a denial of religious accommodation in violation of Title VII. Therefore, this claim, standing alone, could not be subject to dismissal for electing to first pursue the matter before the MSPB. However, in this particular case, we conclude that Complainant’s religious accommodation claim is inextricably tied to his termination such that it is properly construed as his affirmative defense to the charges the Agency used to support its termination decision. In Complainant’s appeal to the MSPB of his termination, he wrote: “Local Management has refused to allow me to work, then issued me a 14-day suspension and a letter of removal for failure to be regular in attendance. I cannot be regular in attendance when I am not allowed into the building to work. Management has ignored my religious accommodation relating to badge access in the building and chosen to refuse to allow me to enter and work. Management is attempting to force me into retirement and removal before I was ready to do so. They are doing this because of age and religious discriminations. Management has continued to harass me and abuse the religious accommodation procedures and ignore the grievance settlements related to my accommodation.” As such, we conclude that under the unique facts of this case Complainant’s religious accommodation claim is so tied to his termination appeal that the Agency was also correct in dismissing it as part of Complainant’s election to first pursue his termination claim before the MSPB. CONCLUSION The Agency’s final decision dismissing the formal complaint for the reason stated herein 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. 2021002935 4 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. 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. 2021002935 5 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 July 21, 2021 Date