[Redacted], Lin A., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Pacific Area), Agency.

Equal Employment Opportunity Commission

Feb 17, 2021

Appeal No. 2021001436 (E.E.O.C. Feb. 17, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Lin A.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Pacific Area), Agency. Appeal No. 2021001436 Agency No. 1F-904-0035-20 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated October 15, 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. BACKGROUND During the period at issue, Complainant worked as a Clerk at the Agency’s Los Angeles Network and Distribution Center in Bell, California. On June 17, 2020, Complainant initiated EEO Counselor contact. Informal efforts to resolve her concerns were unsuccessful. On September 24, 2020, Complainant filed the instant formal complaint. Complainant claimed that the Agency subjected her to discrimination based on race and in reprisal for prior 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. 2 2021001436 1. From March through April 2019, and November 9, 2019 through December 2019, she was not paid higher level pay while on a detail assignment; and 2. on March 7, 2020, management would not accept her counter offer of $300 and did not settle her claim during REDRESS. In its final decision, the Agency dismissed claim 1 for untimely EEO Counselor contact, pursuant to 29 C.F.R. § 1614.107(a)(2). Specifically, the Agency determined that Complainant initiated EEO Counselor contact on June 17, 2020, which the Agency found was more than forty-five days after the alleged discriminatory event occurred. The Agency also dismissed claim 2 for failure to state a claim, pursuant to 29 C.F.R. § 1614.107(1). The Agency found that the subject claim is a collateral attack on the REDRESS mediation process. The Agency stated that Complainant should have raised her allegations through the REDRESS mediation process, and not through the EEO complaint process. The instant appeal followed. ANALYSIS AND FINDINGS Untimely EEO contact: Claim 1 EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of personnel action, within forty-five (45) days of the effective date of the action. Here, the Agency properly dismissed claim 1 on the grounds of untimely EEO Counselor contact. The alleged discriminatory events from March 2019 to April 2019 and November 9, 2019 to December 2019. However, Complainant did not initiate contact with an EEO Counselor until September 24, 2020, well beyond the 45-day limitation period. On appeal, Complainant did not present persuasive arguments or evidence warranting an extension of the time limit for initiating EEO Counselor contact. See 29 C.F.R. § 1614.604(c). Therefore, we find that the Agency’s dismissal of claim 1 was proper. Failure to State a Claim: Claim 2 In claim 2, it appears Complainant is alleging that the Agency discriminated against her by actions or statements made during mediation (REDRESS) discussions. Under our precedent, this sort of allegation fails to state a proper claim of employment discrimination. See, e.g., Oliver v. United States Postal Service, EEOC Appeal No. 01A14752 (Oct. 3, 2001) (dismissing, for failure to state a claim, a complaint containing claims arising out of mediation negotiations between the parties); and Nelson v. Department of Defense (Defense Contract Audit Agency), EEOC Appeal No. 3 2021001436 01A13907 (Sept. 25, 2001) (noting that “comments and actions made during a mediation session [are] akin to actions during a settlement negotiation, which we have held fail to state a claim”). Therefore, the Agency did not err in dismissing this portion of Complainant's complaint either. CONCLUSION The Agency’s final decision dismissing the formal complaint for the reasons 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. 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. 4 2021001436 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. 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 17, 2021 Date