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

Equal Employment Opportunity Commission

Nov 30, 2021

Appeal No. 2021004556 (E.E.O.C. Nov. 30, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Monroe M.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. Appeal No. 2021004556 Agency No. 4B-270-0040-21 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated July 28, 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 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 Mail Processing Clerk, PS-6, at the Agency’s Hilburn Post Office in Raleigh, North Carolina. On June 1, 2021, Complainant initiated EEO Counselor contact. Informal efforts to resolve his concerns were unsuccessful. On July 7, 2021, Complainant filed a formal EEO complaint claiming that the Agency subjected him to a hostile work environment based on sex, disability, age, 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. 2021004556 2 1. on December 21, 2018, and December 24, 2018, Complainant was sent home for voicing his concerns; 2. from December 21, 2018 through August 26, 2019, Complainant was denied a reasonable accommodation; 3. on April 10, 2020, management did not abide by a grievance settlement; and 4. on December 30, 2020, Complainant’s Office of Workers’ Compensation Program (OWCP) claim was denied. On July 28, 2021, the Agency issued a final decision, dismissing the formal complaint on two grounds. First, the Agency dismissed the formal complaint for untimely EEO Counselor contact, pursuant to 29 C.F.R. § 1614.107(a)(2). The Agency found that Complainant’s initial EEO Counselor contact was on June 1, 2021, which it found to be beyond the 45-day limitation period. Second, the Agency dismissed claim 4, pursuant to 29 C.F.R. § 1614.107(a)(1), for failure to state a claim. Specifically, the Agency found that the claim constituted a collateral attack on the Department of Labor’s Office of Workers Compensation Programs (OWCP) adjudicatory process. The Agency determined that this matter was outside of the Commission's jurisdiction and should have been raised with OWCP. The instant appeal followed. On appeal, Complainant argues that he attempted to initiate EEO Counselor contact on three separate occasions in December 2018. Complainant explains that he tried calling the central telephone number on December 21, 2018. Complainant asserts, however, that the Agency had discontinued its central phone number service and instructed individuals to the e-file website to initiate the pre-complaint process. Complainant states that on December 24, 2018, he tried to register on the e-file website and attempted to register his email address, but that he received an “error” message requiring that his email address begin with a letter. Complainant explains that his email address begins with a number. Complainant then stated that he attempted to access the “contact us” link provided on e-file website to gain assistance, but this website link also was not working, and the system generated a notification that delivery failed. Complainant explains that while the Agency provided documentation that he attended a training regarding the EEO process, Complainant argues that the Agency failed to state when he attended this training or prove that he viewed the slides presented during the training informing him of the EEO filing deadlines. 2021004556 3 ANALYSIS AND FINDINGS Collateral Attack (claim 4) An employee cannot use the EEO complaint process to lodge a collateral attack on another adjudicatory proceeding. See Wills v. Dep't of Def, EEOC Request No. 05970596 (July 30, 1998); Kleinman v. U.S. Postal Serv., EEOC Request No. 05940585 (Sept. 22, 1994); Lingad v. U.S. Postal Serv., EEOC Request No. 05930106 (June 25, 1993). 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). The essence of this claim involves Complainant’s denial of OWCP benefits. Complainant explains on appeal that the OWCP relied on adversarial Agency interference with his claim.2 However, the proper forum for Complainant to have raised his challenges to actions which occurred during the OWCP process 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. Therefore, the Agency properly dismissed the instant formal complaint pursuant to 29 C.F.R. § 1614.107(a)(1), for failure to state a claim due to lodging a collateral attack on the proceedings of the OWCP process. Untimely EEO Counselor Contact - (claims 1 -3) 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. The Commission has adopted a “reasonable suspicion” standard (as opposed to a “supportive facts” standard) to determine when the forty-five (45) day limitation period is triggered. See 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. Here, the record reflects that the last discrete act at issue occurred on April 10, 2020. Therefore, Complainant had 45 days from this action to timely contact an EEO Counselor. However, the record reflects that Complainant waited approximately one year to initiate EEO Counselor contact in June 2021. Therefore, Complainant’s contact was untimely. We note that Complainant asserts that he was subjected to discriminatory harassment. However, in order for his harassment claim to prevail at least one alleged incident must have occurred within the 45-day limitation period. 2 Complainant notes on appeal that his OWCP claim was ultimately approved. 2021004556 4 As previously discussed, the last alleged incident occurred approximately one year before Complainant initiated EEO Counselor contact. Moreover, Complainant has not argued previously or on appeal that he has been subjected to ongoing harassment. However, EEOC regulations provide that the Agency or the Commission shall extend the time limits when the individual shows that he was not notified of the time limits and was not otherwise aware of them, that he did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence he was prevented by circumstances beyond his control from contacting the Counselor within the time limits, or for other reasons considered sufficient by the Agency or the Commission. 29 C.F.R. § 1614.105(a)(2). Here, Complainant argues that he made three attempts to initiate the pre-complaint process in December 2018, but he was unsuccessful. However, it is unclear why Complainant waited approximately three years to successfully initiate EEO Counselor contact in 2021. Complainant further concedes that he attended EEO training but asserts that the Agency has not proven when he took this training or that he paid attention and viewed the information presented during the training related to the 45-day limitation period. Presumably, Complainant could have indicated when he attended the EEO training and notably Complainant did not argue that he attended this training during the period he attempted to initiate EEO Counselor contact in 2018. Additionally, Complainant does not dispute the Agency’s assertion that the EEO Poster 72, explaining the filing deadlines, was posted at the Agency. Consequently, Complainant does not deny that the Agency made information regarding the 45-day deadline available. Given the unique circumstances of this case, we find that Complainant has not presented any persuasive arguments or evidence warranting an extension of the time limit for initiating EEO Counselor contact. 29 C.F.R. § 1614.105(a)(2). CONCLUSION The Agency’s final decision dismissing the formal complaint on the grounds 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. 2021004556 5 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. 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. 2021004556 6 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 November 30, 2021 Date