[Redacted], Sam R., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Capital Metro Area), Agency.

Equal Employment Opportunity Commission

Jun 16, 2021

Appeal No. 2021002403 (E.E.O.C. Jun. 16, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Sam R.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Capital Metro Area), Agency. Appeal No. 2021002403 Agency No. 4K-220-0089-20 DECISION Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency’s decision dated February 19, 2021, dismissing his 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a City Carrier at the Agency’s Post Office facility in Oakton, Virginia. On January 16, 2021, Complainant received a Notice of Right to File an Individual Complaint. On January 24, 2021, Complainant submitted a request for a two-week extension of the filing deadline for his EEO complaint because he had undergone spinal surgery that same week. On January 28, 2021, an EEO Services Analyst sent Complainant a letter granting the extension request and informing Complainant that he had 15 calendar days from receipt of the letter to file his complaint. On February 4, 2021, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (not specified), national origin (not specified), religion (not specified), color (not specified), age (60), and in reprisal for prior protected EEO activity 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. 2021002403 2 under Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act of 1967 when: 1. On April 15, 2020 and April 23, 2020, Complainant contacted the Postmaster regarding his concern for other coworkers not wearing masks and never received a response; 2. On April 15, 2020, management challenged Complainant’s Office of Workers’ Compensation Program (OWCP) case, and subsequently, on May 28, 2020, it was denied by the Department of Labor; 3. On August 8, 2020, Complainant was issued a Letter of Warning for Failure to Follow Instructions; 4. On August 18, 2020, management denied Complainant’s request for light duty, and he was forced to continue working despite his injury; 5. On October 14, 2020, and again on October 23, 2020, Complainant’s sick leave request was denied; 6. On October 26, 2020, Complainant was given a Pre-Disciplinary Interview, and subsequently, on October 31, 2020, he was issued a Letter of Warning; and 7. On November 4, 2020, Complainant was given a Pre-Disciplinary Interview, and subsequently, on November 10, 2020, he was issued a Letter of Warning for Unauthorized Overtime. The Agency dismissed all of Complainant’s claims on the ground that his formal complaint was untimely filed. The Agency’s dismissal did not address the two-week extension Complainant was granted. In the alternative, the Agency dismissed Complainant’s second claim (relating to his OWCP proceeding) pursuant to 29 C.F.R. § 1614.107(a)(1) for failure to state a claim, finding that Complainant was using the EEO process “to lodge a collateral attack on another forum’s proceeding.” The instant appeal followed. Complainant on appeal argues that due to the granting of the two- week extension, his complaint was timely filed. He does not address the issue of whether his claim regarding the OWCP proceeding fails to state a claim. ANALYSIS AND FINDINGS Timeliness of Complaint (Claims 1, 3-7) EEOC Regulation 29 C.F.R. § 1614.107(a)(2) states, in pertinent part, that an agency shall dismiss a complaint which fails to comply with the applicable time limits contained in 29 C.F.R. § 1614.106, which, in turn, requires the filing of a formal complaint within 15 days of receiving the notice of the right to do so. 2021002403 3 Here, Complainant does not dispute that he received the Notice of the Right to File on January 16, 2021. Before the 15-day time period had expired, however, Complainant submitted a request for a two-week extension of the filing deadline, which was granted. In his appeal brief, Complainant includes copies of the extension request and the January 28, 2021 letter granting the 15-day extension (starting from receipt of the January 28, 2021 letter). The record shows that Complainant filed his complaint on February 4, 2021, which was within 15 days of receipt of the letter granting his extension request. The Agency has not provided any argument on appeal disputing Complainant’s evidence that an extension to file was granted. EEOC Regulation 29 C.F.R. § 1614.604(c) provides that the time limits in the regulations are subject to waiver, estoppel, and equitable tolling. We therefore find that the instant complaint was filed in a timely manner and that the Agency improperly dismissed Complainant’s complaint due to untimely filing of a formal complaint. Failure to State a Claim (Claim 2) 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, 1614.106(a). The Commission 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). When the complainant does not allege he or she is aggrieved within the meaning of the regulations, the agency shall dismiss the complaint for failure to state a claim pursuant to 29 C.F.R. § 1614.107(a)(1). The Commission has held that an employee cannot use the EEO complaint process to lodge a collateral attack on another proceeding. See Wills v. Dep’t of Defense, EEOC Request No. 05970596 (July 30, 1998); Kleinman v. USPS, EEOC Request No. 05940585 (Sept. 22, 1994); Lingad v. USPS, 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). Here, the dismissed claim concerns the processing of Complainant’s Department of Labor OWCP claim. This claim falls outside of EEOC jurisdiction. Thus, the proper forum for Complainant to have raised these concerns is within the OWCP’s process. See e.g., Abiuso v. USPS, EEOC Appeal No. 0120100241 (Oct. 5, 2010). Attempting to raise them here is an inappropriate use of the EEO process to lodge a collateral attack on the OWCP’s adjudicatory process. See Minna Z. v. USPS, EEOC Appeal No. 2019002803, (Nov. 21, 2019) (Commission affirmed the agency’s dismissal of claim that the agency delayed sending paperwork to OWCP). Therefore, we find the Agency’s dismissal of claim 2 was proper. 2021002403 4 CONCLUSION The Agency’s dismissal of claim 2 is AFFIRMED. The Agency’s dismissal of claims 1 and 3 - 7 is REVERSED and these claims are REMANDED to the Agency for further processing in accordance with the following Order. ORDER (E0618) The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. §1614.108. The Agency shall acknowledge to the Complainant that it has received the remanded claims 1 and 3-7 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. 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). 2021002403 5 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. 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. 2021002403 6 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 June 16, 2021 Date