[Redacted], Junior T., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Western Area), Agency.Download PDFEqual Employment Opportunity CommissionMay 19, 2021Appeal No. 2021000154 (E.E.O.C. May. 19, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Junior T.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Western Area), Agency. Request No. 2021001238 Appeal No. 2021000154 Agency No. 1E-502-0005-20 DECISION ON REQUEST FOR RECONSIDERATION The Agency timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 2021000154 (December 2, 2020). EEOC regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision issued pursuant to 29 C.F.R. § 1614.405(a), where the requesting party demonstrates 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. See 29 C.F.R. § 1614.405(c). BACKGROUND Complainant worked as a Mail Handler Equipment Operator at the Network Distribution Center in Des Moines, Iowa. Complainant filed an EEO complaint alleging that the Agency discriminated against him on the bases of race (Black), disability (Post Traumatic Stress Disorder - PTSD), and age (0ver 40) 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. 2021001238 2 1. On November 14, 2019, he was issued a Letter of Decision which upheld his removal after an altercation that occurred on August 31, 2019; 2. On January 28, 2020, a Step 3 Grievance Settlement brought him back to work but did not award any backpay; and 3. On February 4, 2020, he reported back to work, but was assigned to a different unit and did not receive extra compensation for the reassignment. The Agency accepted claims 1 and 3 for investigation but dismissed claim 2 as an impermissible collateral attack on the grievance process. On June 4, 2020, at the conclusion of the investigation, the Agency sent a copy of the investigative report to Complainant, as well as notice of his right to request a hearing. On August 18, 2020, the Agency issued a final decision on the merits of the complaint, pursuant to 29 C.F.R. § 1614.110(b), based on the evidence developed during the investigation. The Agency asserted it issued the final decision (FAD) because Complainant had not requested a hearing. Complainant appealed and provided proof in the form of a certified mail return receipt that, on June 29, 2020, six weeks prior to the Agency’s issuance of its final decision, he had timely filed a request for a hearing with the Hearings Unit of the EEOC’s Milwaukee District Office. Accordingly, the Commission issued a decision vacating the Agency’s FAD and remanding the complaint for a hearing. The Agency submitted the instant request for reconsideration. On request for reconsideration, the Agency specifically contends that: (1) Complainant failed to comply with the mandatory service requirements of 29 C.F.R. § 1614.108(h); (2) the Agency had neither actual nor constructive notice of Complainant’s hearing request; (3) NEEOISO retained jurisdiction over Complainant’s administrative complaint when it issued the final decision on December 17, 2018; and (4) Mitchell H. v. United States Postal Service, EEOC Request Number 2020001624 (August 11, 2020), and Blanca B. v. United States Postal Service, EEOC Appeal Number 0120171595 (November 20, 2018), reconsideration denied, EEOC Request Number 2019002387 (June 11, 2019), are the on-point legal comparisons and provide the appropriate legal framework to apply in this action. In so doing, the Agency asserts that both Mitchell H. and Blanca B. stand for the proposition that a hearing request is defective and will not transfer jurisdiction from the agency under the following conditions: (1) an agency provides the complainant adequate notice under 29 C.F.R 1614.110(b); (2) the complainant fails to comply with the mandatory service requirement of 29 C.F.R. § 1614.108(h); and (3) an agency issues a FAD without knowing that the complainant had requested a hearing. Therefore, the Agency argues that the Commission’s prior decision erred in vacating its final decision and remanding the matter to the EEOC Hearings Unit. Complainant has not submitted a statement or brief in response. 2021001238 3 ANALYSIS After reviewing the previous decision and the entire record, the Commission exercises its discretion to reopen the matter on its own motion. Request for Hearing EEOC Regulation 29 C.F.R. §1614.108(h) provides that a complainant shall submit a written request for a hearing directly to the EEOC’s hearing unit indicated in the Agency’s notice of right to request a hearing. The regulation goes on to require that the complainant also send a copy of the request to the agency’s EEO office. Here, it is undisputed that Complainant timely submitted a request for a hearing to the Commission's Milwaukee District Office but failed to submit a copy of the request to the Agency. The Commission has held that failure to provide an agency with notice of a hearing request may render the request legally deficient and, therefore, ineffective in transferring jurisdiction of the complaint to the EEOC for the purpose of conducting a hearing. See Mitchell H. v. U.S. Postal Service, EEOC Request No. 2020001624 (Aug. 11, 2020), citing to Gallo v. Department of Labor, EEOC Request No. 05A01085 (Oct. 9, 2002). We note that an agency’s notice of right to request a hearing must be sufficient to put a complainant on notice that he risks forfeiting his right to a hearing if he does not notify the agency of his hearing request. Mitchell H., id.; Cerisano v. U.S. Postal Serv., EEOC Appeal No. 0120041629 (Dec. 15, 2006). A review of the record in this case shows that the Transmittal of Investigative File notice and the Request for Hearing Form contained instructions for Complainant to send a copy of his hearing notice to the Agency, with a warning that failure to do so would result in the loss of his right to a hearing. As such, we find that the Agency adequately placed Complainant on notice that he could lose his right to a hearing if he did not send a copy of his hearing request to the Agency. The Agency asserts that it lacked constructive knowledge of Complainant’s hearing request, noting that, on March 8, 2017, the EEOC district office issued an Acknowledgement and Order, unaware that the Agency had, on February 21, 2017, already issued its FAD, and the Agency immediately moved to dismiss the hearing request. Therefore, we find the Agency had neither actual nor constructive knowledge of Complainant’s hearing request, prior to the issuance of its FAD.2 We note that the Commission has found that a final decision is properly issued when a complainant does not serve a copy of his or her hearing request to the agency, and the agency issues a final decision without notice of the hearing request. See Mitchell H. v. U.S. Postal Service, EEOC Request No. 2020001624 (Aug. 11, 2020); Blanca B. v. United States Postal Service, EEOC Appeal Number 0120171595 (November 20, 2018), reconsideration denied, 2 We note that the instant case is distinguishable from Chas T. v. United States Postal Service, EEOC Appeal Number 2019001983 (October 8, 2019) (granting complainant’s appeal where the agency was on constructive notice that complainant had filed a hearing request when it issued a final decision). 2021001238 4 EEOC Request Number 2019002387 (June 11, 2019). Therefore, we find Complainant forfeited his right to a hearing and the Agency’s issuance of its FAD was proper. Accordingly, we will vacate our decision in Appeal No. 2021000154, which remanded the complaint for a hearing. Because our previous decision considered only Complainant’s request for a hearing and we now find that Complainant forfeited his right to a hearing and the Agency's issuance of a final decision was proper, we now examine the merits of the complaint and whether the Agency properly concluded that Complainant failed to prove that the Agency subjected him to discrimination, as alleged. Merits of the Complaint Dismissed Claim - Claim (2) The regulation set forth at 29 C.F.R. § 1614.107(a)(1) provides, in relevant part, that an agency shall dismiss a complaint that fails to state a claim. An agency shall accept a complaint from any 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). The Agency dismissed claim (2) for failing to state a claim, noting that it was a collateral attack on the grievance process. 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). As the allegations in claim (2) concern the grievance process, the EEO process is not the proper forum for Complainant to have raised this issue. Therefore, the Agency’s dismissal of this claim was proper. Disparate Treatment Claims A claim of disparate treatment based on indirect evidence is examined under the three-part analysis first enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). For Complainant to prevail, he or she must first establish a prima facie case of discrimination by presenting facts that, if unexplained, reasonably give rise to an inference of discrimination, i.e., that a prohibited consideration was a factor in the adverse employment action. McDonnell Douglas, 411 U.S. at 802; Furnco Construction Corp. v. Waters, 438 U.S. 567 (1978). The burden then shifts to the Agency to articulate a legitimate, nondiscriminatory reason for its actions. Texas Dep't. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). 2021001238 5 Once the Agency has met its burden, the complainant bears the ultimate responsibility to persuade the fact finder by a preponderance of the evidence that the Agency acted on the basis of a prohibited reason. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993). This established order of analysis in discrimination cases, in which the first step normally consists of determining the existence of a prima facie case, need not be followed in all cases. Where the Agency has articulated a legitimate, nondiscriminatory reason for the personnel action at issue, the factual inquiry can proceed directly to the third step of the McDonnell Douglas analysis, the ultimate issue of whether Complainant has shown by a preponderance of the evidence that the Agency's actions were motivated by discrimination. U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 713-714 (1983); Hernandez v. Dep't. of Transp., EEOC Request No. 05900159 (June 28, 1990); Peterson v. Dep't. of Health and Human Serv., EEOC Request No. 05900467 (June 8, 1990); Washington v. Dep't. of the Navy, EEOC Petition No. 03900056 (May 31, 1990). Here, Complainant’s allegations in claims (1) and (3), regarding a Notice of Decision and reassignment without extra compensation, respectively, give rise to claims of disparate treatment. Even assuming arguendo that he established a prima facie case with respect to these claims, we find the responsible Agency officials provided legitimate, nondiscriminatory reasons for its actions. Regarding claim (1), the record includes a letter indicating that Complainant was placed on emergency placement, effective August 31, 2019, for improper conduct. A Notice of Proposed Removal, dated October 1, 2019, indicates that Complainant was charged with unacceptable conduct when, on August 31, 2019, he was involved in a verbal disagreement and physical altercation with another employee, during which Complainant also threatened to “cut [the other employee’s] throat.†The Notice of Proposed Removal indicates that Complainant’s actions were in violation of Agency policy, including sections of the Employee and Labor Relations Manual, the Network Distribution Center’s Altercation Policy, and the Agency’s Zero Tolerance Policy. A Letter of Decision dated November 13, 2019 indicates that the charge was sustained.3 Although Complainant attested that he did nothing to the other employee and the other employee bumped him in the chest, the Agency’s management explained that an investigation was conducted and, while both employees were initially placed on emergency placement, it was determined that the other employee was the victim in the altercation. Management also attested that the discipline was consistent Agency policy. Regarding claim (3), Complainant alleged that he was reassigned to a different unit was not given extra compensation for it. He attested that the Agency’s management told him that he was to receive $25 for each day that he was away from his unit. Management explained that Complainant was reassigned because the employees in Complainant’s bid area were very upset when he returned to work, as they were concerned for their safety, due to Complainant’s 3 The Step 3 Grievance Settlement dated January 26, 2020 indicates that the proposed removal was reduced to a long term, time served suspension with no monetary remedy. 2021001238 6 behavior on August 31, 2019, the date of the altercation that was the subject of claim (1). Management explained that the decision to assign Complainant to another unit was to allow the employees the opportunity to get reacquainted prior to returning Complainant back to his unit. Management attested that Complainant was told that he would be paid extra compensation for being assigned to the different unit and he received that extra compensation. The record includes a Step 1 Grievance Settlement dated February 10, 2020 indicating that Complainant would be paid $25 per day for improper reassignment from when he returned to work on February 4, 2020 until management returned him to his bid assignment. Complainant attested that the Agency paid him $25 per day and that he received a grievance settlement of $475. We recognize that Complainant has alleged that his race, disability, and/or age were factors regarding the Agency’s actions in claim (1) because his supervisors were white or mixed race; he has PTSD and does what he is told and follows the rules; and when he is violated, he is going to speak up, having witnessed racism on a personal level. We also recognize that he believes he was reassigned while the other employee involved in the altercation was allowed to remain in the unit because of race. However, the record does not establish that Complainant’s race, disability, or age played any role in the events at issue. Therefore, he has failed to establish, by a preponderance of the evidence, that the Agency's actions were motivated by discrimination. CONCLUSION After reconsidering the previous decision and the entire record, the decision of the Commission in Appeal No. 2021000154 is VACATED. We also AFFIRM the Agency’s final decision finding no discrimination. Because this is the first time the merits of the matter have been addressed, we are affording the parties the right to request reconsideration of our merits determination. 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. 2021001238 7 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. 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. 2021001238 8 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 May 19, 2021 Date Copy with citationCopy as parenthetical citation