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

Equal Employment Opportunity Commission

Feb 22, 2021

Appeal No. 2021001084 (E.E.O.C. Feb. 22, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Shanice C.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Capital Metro Area), Agency. Appeal No. 2021001084 Agency No. 4K-280-0222-20 DECISION On October 28, 2020, Complainant filed the instant appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from an Agency final decision, dated September 18, 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., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND During the relevant time, Complainant worked for the Agency as a City Carrier in Charlotte, North Carolina. Believing that she was subjected to unlawful discrimination, based on her race (Black), color, sex (female), age (y.o.b. 1978), disability, and in reprisal for prior protected EEO activity Complainant contacted an EEO Counselor on July 26, 2020.2 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 According to the EEO Counselor’s Report, Complainant “did not participate in pre-complaint counseling . . . .” It appears that her intake information was obtained through “Counselee’s efile 2021001084 2 In the Counselor’s Report, the claim was identified as: “. . . when on June 3, 2020, Acting Manager testified during an arbitration hearing that he forged pay documents to terminate the position.” In the summary portion of the EEO Counselor’s Report, based on documents submitted by Complainant, the EEO Counselor noted the following events: on December 27, 2019 Complainant was issued a Notice of Removal for being Absent Without Official Leave (AWOL); the documents used to justify the removal were alleged forged by the Acting Manager; Complainant filed a grievance regarding the removal; and, during the arbitration hearing conducted on June 3, 2020, Acting Manager testified to the document falsification. Informal efforts to resolve Complainant’s concerns were unsuccessful. Complainant was issued a Notice of Right to File Individual Complaint (hereinafter “Notice”), dated August 14, 2020, wherein the claim was framed as follows: “On June 3, 2020, you were terminated from employment.” On August 24, 2020, Complainant filed a formal complaint. On September 18, 2020, the Agency issued a final decision dismissing the formal complaint for failure to state a claim. As a preliminary matter, the Agency noted that on September 10, 2020, it received an “EEO Contact Summary” from Complainant and would treat the matter as an amendment. The Agency defined the formal complaint as follows: 1. On June 3, 2020, [Acting Manager] testified during an arbitration hearing that he forged pay documents to terminate Complainant’s position; and 2. On or about September 10, 2020, management has not complied with the arbitration decision (# K16N-4K-D 20113358) dated August 6, 2020. The Agency found that Complainant filed a grievance when she was issued a Notice of Removal. The matter went to an arbitration hearing on June 3, 2020, where the panel decided in Complainant’s favor, returning her to her position. The Agency noted that “[i]t is clear you are dissatisfied with the grievance outcome. However, it is inappropriate to use the EEO process for a matter . . . within the jurisdiction of the collective bargaining agreement.” Complainant’s EEO complaint was dismissed as an impermissible collateral attack. From the instant record, it also appears that on September 19, 2020, before receiving the Agency’s decision regarding the instant case, Case No. 4K-280-0222-20 (hereinafter “Complaint-1”) Complainant again contacted the EEO office. The EEO office responded by assigning her concerns a new case number, Case No. 4K-280-0263-20 (hereafter “Complaint-2”). Complainant was issued a Notice,3 dated October 16, 2020, which identified the claim as: “On September 6, summary.” Likewise, in a handwritten notation next to her signature on the “Notice of Right to File Individual Complaint” form, Complainant stated “[Counselor] did not advise me of anything.” 3 Between the Agency’s September 25, 2020 correspondence, informing Complainant that efforts to contact her on that day were unsuccessful, and the October 16, 2020 Notice, there is no documentation regarding Complaint-2. Specifically, we note the absence of an EEO Counselor’s Report or any other evidence of what matters were counseled. 2021001084 3 2020, Complainant alleges failure to be reinstated by September 6, 2020” - essentially claim (2) of Complaint-1. Following receipt of the Notice, Complainant filed a formal complaint dated October 27, 2020 (Complaint-2) alleging she was discriminated against when: June 3, 2020, [Acting Manager] testified at arbitration that he forged my time sheets to list me as AWOL to have me fired. I won the arbitration to get my job back June/Aug. 2020 and have continuously emailed [Agency officials]. Had to submit to psychiatric exam and am still being denied my position as a City Carrier. This claim is simply a restatement or reiteration of the claims set forth in Complaint-1. To add to the confusion, the timing of the amendment cited in the decision for Complaint-1 and the initial contact for Complaint-2 suggests that these actions by Complainant could be one in the same. The record intimates that perhaps when Complainant contacted the EEO office in September 2020, regarding the Agency’s failure to reinstate her pursuant to her arbitration victory, her concerns were treated as both amendment to Complaint-1 and a new matter (Complaint-2). On October 28, 2020, Complainant filed the instant appeal. ANALYSIS AND FINDINGS Unfortunately, relying upon the appeal file submitted by Complainant that contained documents from both Complaint-1 and Complaint-2, the Commission erroneously cited the case number for Complaint-2 in acknowledging the instant appeal. Despite this error, the Agency’s response to the appeal noted Complainant’s submission of the September 18, 2020 decision for Complaint-1 and contemplated “[i]t is possible it was Complainant’s intention to appeal this decision.” Therefore, in addition to asserting that an appeal of Complaint-2 was premature, as no decision had been issued, the Agency argued that an appeal of Complaint-1 was untimely. According to the Agency, Complainant received the decision on September 24, 2020, but waited more than thirty days to file her appeal on October 28, 2020. EEOC Regulations require that a complainant’s appeal must be filed within thirty days of receipt of an Agency’s final decision. 29 C.F.R. § 1614.402(a). In support of its belief that Complainant’s appeal was untimely filed, the Agency provides a “USPS Tracking Intranet” print-out for the tracking number identified on its final decision indicating that a delivery was made to “Charlotte, NC 28372” on September 24, 2020. Where, as herein, 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)). We have previously found that a generalized reference to a city and state, without Complainant’s home address is insufficient evidence of Complainant’s receipt of the decision date specified. See Robertson v. United States Postal Service, EEOC Appeal No. 0120114064 (March 28, 2013); Complainant v. Nuclear Regulatory Commission, EEOC Appeal No. 0120162598 (Jan. 5, 2017); 2021001084 4 Complainant v. United States Postal Service, EEOC Appeal No. 0120140106 (Feb. 19, 2014). Therefore, we decline to dismiss the appeal as untimely filed. As noted above, the Agency dismissed Complaint-1 on the grounds that it was a collateral attack on the grievance/arbitration process and therefore fails to state a claim. 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, .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. Department 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 adjudicatory proceeding. See Wills v. Department of Defense, EEOC Request No. 05970596 (July 30, 1998); Kleinman v. United States Postal Service, EEOC Request No. 05940585 (September 22, 1994); Lingad v. United States Postal Service, EEOC Request No. 05930106 (June 25, 1993). In the instant matter, Complainant's complaint allegations concern matters involving an arbitration hearing held as part of the Agency's negotiated grievance procedure. The EEO process is not the proper forum for Complainant to have raised her concerns. As Complainant is challenging actions directly related to the arbitration of his grievance, he must raise such matters in the arbitration process, not the EEO process. Finally, we reiterate that the record reflects inadequate EEO counseling, inadequate framing of the issues, and inadequate processing of Complainant’s EEO complaints. Similarly, the complaint file the Agency was required to provide to the Commission was markedly insufficient.4 The Agency is advised to review the practices of the relevant EEO office in an effort to avoid these deficiencies in the future. CONCLUSION Accordingly, the Agency’s September 18, 2020 decision is AFFIRMED. 4 The Agency only provided limited documentation related to Complaint-2, even though it acknowledged that the appeal could be about Complaint-1. Many of the pages submitted were irrelevant to the issues before us - including a copy of an EEO poster and a 2017 affidavit regarding its posting. Meanwhile, even an EEO Counselor’s Report for Complaint-2 was absent. If not for the documents provided by Complainant the Commission would have been unable to process the appeal. 2021001084 5 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. 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). 2021001084 6 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 22, 2021 Date