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

Equal Employment Opportunity Commission

Apr 25, 2022

Appeal No. 2022001512 (E.E.O.C. Apr. 25, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Michel S.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. Appeal No. 2022001512 Agency No. 4G-300-0306-21 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated December 21, 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. BACKGROUND The record reflects that Complainant was a former Agency employee, who had as a Mail Processing/Letter Sorting Machine Operator, Grade PES-06, in Savanah, Georgia. In July 1981, Complainant was removed from Agency employment. On August 17, 2021, Complainant initiated contact with an Agency EEO counselor regarding matters he believed to be discriminatory. The EEO Counselor’s report indicates that Complainant stated that he had requested his personnel file approximately one year before he sought counseling (on an unspecified date in 2019 or 2020). When he received the file, Complainant learned his personnel file contained a derogatory letter involving an accusation that a supervisor had accused Complainant of threatening him. 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 2022001512 On November 29, 2021, Complainant a formal EEO complaint alleging that the Agency subjected him to unlawful retaliation for prior protected EEO activity. The Agency defined Complainant’s claim as follows: On an unspecified date in 2019 or 2021, Complainant became aware of derogatory information in his personnel file that caused the denial of his OWCP [Office of Workers’ Compensation Programs] claim. The Agency dismissed the formal complaint pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO Counselor contact. In the alternative, the Agency dismissed Complainant’s claim for failure to state a claim under 29 C.F.R. § 1614.107(a)(1), because it lodged an improper collateral attack on the OWCP process. The instant appeal followed. On appeal, Complainant contends that Agency improperly kept the supervisor’s letter he found in his personnel file. Complainant maintains that the supervisor’s letter was false and slanderous and should have been excluded because it was not an official document. Complainant asserts that, in addition to negatively impacting his worker’s compensation claim, the supervisor’s letter had also undermined his efforts to promote to Postal Inspector or EEO Counselor. Complainant stated that the supervisor’s letter also prevented him from transferring to a letter carrier position. Complainant suspected that the Agency would have reinstated him but for it wrongfully keeping the supervisor’s letter in his personnel file. ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R. § 1614.105(a)(1) provides, in relevant part, that complaints of discrimination must be brought to the attention of an EEO Counselor within forty-five days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five (45) days of the effective date of the action. The Commission has adopted a “reasonable suspicion” standard (as opposed to a “supportive facts” standard) to determine when the 45-day limitation period is triggered. Howard v. Dep't of the Navy, EEOC Request No. 05970852 (Feb. 11, 1999). Thus, the time limitation is not triggered until a complainant reasonably suspects discrimination, but before all the facts that support a charge of discrimination have become apparent. The instant formal complaint was properly dismissed pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO Counselor contact. Complainant learned of the discriminatory supervisor’s letter, at the latest, on December 31, 2020, or shortly thereafter,2 but Complainant did not initiate contact with an EEO Counselor until August 17, 2021, which is beyond the forty-five (45) day 2 According to the EEO Counselor’s report, when interviewed, Complainant had stated that he had obtained and reviewed the copy of his personnel file “about a year ago.” Complainant otherwise failed to clarify the date he discovered the supervisor’s letter in his personnel file. 3 2022001512 limitation period. On appeal, Complainant has presented no persuasive arguments or evidence warranting an extension of the time limit for initiating EEO counselor contact. Furthermore, this instant formal complaint fails to state a claim under the EEOC regulations because Complainant failed to show that he suffered harm or loss with respect to a present term, condition, or privilege of employment for which there is a remedy under EEOC’s regulations. Diaz v. Dep’t of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994). Complainant’s claim that the supervisor’s letter may have thwarted his career advancement amounts to harm that is too speculative as opposed to having an actual negative impact on his employment. Moreover, we likewise agree with the Agency that Complainant cannot use the EEO complaint process for a collateral attack on a non-EEO decisions by the OWCP denying his workers’ compensation claim. Wills v. Dep’t of Def., EEOC Request No. 05970596 (July 30, 1998). CONCLUSION The Agency's final decision dismissing the instant formal complaint for the reasons discussed above 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 4 2022001512 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. 5 2022001512 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 April 25, 2022 Date