[Redacted], Pamela W, 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity Commission

Feb 9, 2022

Appeal No. 2022000450 (E.E.O.C. Feb. 9, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Pamela W,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service, Agency. Appeal No. 2022000450 Agency No. 4E-920-0072-21 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated October 12, 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 During the relevant time, Complainant worked for the Agency as a Sales, Services/Distribution Associate, GS-06, in Pasadena, California. On September 22, 2021, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination based on race and in reprisal for prior protected activity when: 1. On May 25, 2021, she received a reassignment denial letter, due to attendance; 2. On June 7, 2021, management asked personal questions concerning her leave request, and did not provide the proper paperwork or policy for Emergency Federal Leave; 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. 2022000450 2 3. On August 13, 2021, August 23, 2021 and August 30, 2021, she was harassed, threatened to be disciplined, and management ignored her emails and phone calls; 4. On September 4, 2021, she was given an investigative interview; 5. On September 7, 2021, she was required to work in unsafe working conditions and unsafe ergonomic; 6. On September 7, 2021, her request for union time was not granted; 7. Beginning on an unspecified date and continuing, management has not provided work accommodation or respected her HIPPA rights; and 8. Beginning on an unspecified date, and ongoing, Complainant alleges that she is being harassed and bullied; On October 12, 2021, the Agency issued the instant final decision. The Agency dismissed the instant matter on two procedural grounds. First, the Agency dismissed the formal complaint in its entirety, in accordance with EEOC Regulation 29 C.F.R. § 1614.107(a)(2) on the grounds that Complainant failed to file her formal complaint in a timely manner. Second, the Agency dismissed claim 6, pursuant to EEOC Regulation 29 C.F.R. § 1614.107 (a)(1), on the grounds that the matter failed to state a claim. Specifically, the Agency determined that claim 6 was a collateral attack on the Agency's negotiated grievance process and outside the purview of the EEOC regulations. This appeal followed. ANALYSIS AND FINDINGS Untimely Filed Complaint The regulation set forth at 29 C.F.R. § 1614.106, requires the filing of a formal complaint within fifteen (15) days of receiving notice of the right to do so. Under 29 C.F.R. § 1614.604(d), the time period for the filing of a formal complaint is counted from the first day after the receipt of the notice of right to file a formal complaint and includes the last day of the 15-day period, unless it falls on a Saturday, Sunday, or Federal holiday, in which case the period is extended to include the next business day. The record reflects that Complainant received the Agency's Notice on Friday, September 3, 2021, making the final day of the fifteen-day period for timely filing, as Saturday, June 18, 2021. As the period ended on a Saturday, however, the period for filing was extended to the next business day, or until Monday, September 20, 2021. 2022000450 3 The record discloses that Complainant's formal complaint was in an envelope that contained one postmark dated September 15, 2021 and one postmark which read September 22, 2021. While the Agency acknowledged the September 15, 2021 postmark date, ultimately, the Agency determined that September 22, 2021 was the day Complainant file her formal complaint. In a footnote that Agency stated, “[i]t is noted your envelope contained a round dated stamp of September 15, 2021 however, the postmark on the envelope clearly establishes the mailing date of September 22, 2021. Based on a thorough review of the record including the Agency's bare assertion regarding the postmark on Complainant's envelope, and consideration of any arguments on appeal, we determine that the Agency has failed to adequately support its dismissal decision that Complainant failed to timely file her formal complaint. Where, as here, there is an issue of timeliness, “[a]n agency always bears the burden of obtaining sufficient information to support a reasoned determination as to timeliness.” Guy v. Department of Energy, EEOC Request No. 05930703 (January 4, 1994) (quoting Williams v. Department of Defense, EEOC Request No. 05920506 (August 25, 1992)). In addition, in Ericson v. Department of the Army, EEOC Request No. 05920623 (January 14, 1993), the Commission stated that “the agency has the burden of providing evidence and/or proof to support its final decisions.” See also Gens v. Department of Defense, EEOC Request No. 05910837 (January 31, 1992). In sum, we find the Agency has failed to support its claim that Complainant's July 12, 2017 formal complaint was untimely filed. Claim 6: Failure to State a Claim Dismissal Under the regulations set forth at 29 C.F.R. Part 1614, an agency shall accept a complaint from an 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 (April 21, 1994). If complainant cannot establish that s/he is aggrieved, the agency shall dismiss a complaint for failure to state a claim. 29 C.F.R. § 1614.107(a)(1). Upon review, we concur with the Agency's determination that claim 6, regarding Complainant's request for union time, constitutes an impermissible collateral attack on the Agency's negotiated grievance process. An employee cannot use the EEO complaint process to lodge a collateral attack on another proceeding. See Wills v. Department of Defense, EEOC Request No. 05970596 (July 30, 1998); Kleinman v. U.S. Postal Service, EEOC Request No. 05940585 (September 22, 1994); Lingad v. U.S. Postal Service, EEOC Request No. 05930106 (June 24, 1993). The proper forum for Complainant to raise challenges to actions which occurred during the negotiated grievance process is within that process itself. It is inappropriate to now attempt to use the EEO process to collaterally attack actions which occurred through the negotiated grievance process. The Agency properly dismissed claim 6 for failure to state a claim. 2022000450 4 CONCLUSION The Agency's dismissal of the formal complaint in its entirety for being untimely filed is REVERSED. However, the Agency’s alternative dismissal grounds of failure to state a claim, solely for claim 6, is AFFIRMED. Therefore, claims 1, 2, 3, 4, 5, 7 and 8 are REMANDED to the Agency for further processing in accordance with the ORDER below. ORDER (E0618) The Agency is ordered to process the remanded claims (1, 2, 3, 4, 5, 7 and 8) in accordance with 29 C.F.R. § 1614.108 et seq. The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision was issued. The Agency shall issue to Complainant a copy of the investigative file and also shall notify Complainant of the appropriate rights within one hundred fifty (150) calendar days of the date this decision was issued, unless the matter is otherwise resolved prior to that time. If the Complainant requests a final decision without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of Complainant's request. As provided in the statement entitled “Implementation of the Commission's Decision,” the Agency must send to the Compliance Officer: 1) a copy of the Agency's letter of acknowledgment to Complainant, 2) a copy of the Agency's notice that transmits the investigative file and notice of rights, and 3) either a copy of the complainant's request for a hearing, a copy of complainant's request for a FAD, or a statement from the agency that it did not receive a response from complainant by the end of the election period. IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. If the Agency does not comply with the Commission’s order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission’s order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled “Right to File a Civil Action.” 29 C.F.R. §§ 1614.407 and 1614.408. 2022000450 5 A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. 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. 2022000450 6 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 (T0610) This decision affirms the Agency’s final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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 9, 2022 Date