[Redacted], Terrance S., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency.

Equal Employment Opportunity Commission

Jan 11, 2021

Appeal No. 2020004793 (E.E.O.C. Jan. 11, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Terrance S.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 2020004793 Hearing No. 510-2020-00314X Agency No. 4G-335-0020-20 DECISION On August 27, 2020, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final action dated July 27, 2020, 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. BACKGROUND At the time of events giving rise to this complaint, Complainant was employed by the Agency as a Supervisor, Customer Services, EAS-17, at the New Tampa Station in Tampa, Florida. On November 29, 2019, Complainant filed an equal employment opportunity (EEO) complaint alleging that the Agency subjected him to harassment and discrimination based on his race/color (African-American/Black), sex (male) and reprisal for prior protected EEO activity under Title VII when: 1. beginning on or about October 19, 2019 onward, management negatively influenced his external and internal customers; 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. 2020004793 2 2. on October 25, 2019, he was given an Investigative Interview by his first line supervisor (S1); 3. effective October 25, 2019, he was put in emergency off-duty status without pay;2 and 4. on October 28, 2019, he was given a Supplemental Investigative Interview by S1 and subsequently placed on Administrative Leave. The Agency conducted an EEO investigation. A review the record reflects that allegation 1 concerned what occurred after a postal customer at the station loudly disputed the cost to mail two packages to India and the serving window clerk called Complainant (her supervisor) to assist and Complainant agreed with the clerk on the cost. Complainant alleged the customer irately told him she has a personal relationship with S2 (his second line supervisor) and S2 told her Complainant has a criminal record, has been disciplined at work, is “on a short leash”, and if she called S2 he would lose his job. Report of Investigation (ROI), Affid. A, at 5-6, 28 - 32; Bates Nos. 68 - 69, 91 - 95. Regarding the remaining issues, S1 wrote that on October 24, 2019, Clerk 1 (female) told him she called Complainant for a ride after her car broke down near the post office, and while in his vehicle he said he was “hard” and repeatedly asked that she touch his penis. S1 wrote that this led to an investigation that included interviewing numerous employees at the New Tampa Station, uncovering more allegations of sexually inappropriate behavior by Complainant. Among the allegations were: Complainant repeatedly made comments to his subordinate Clerk 2 (male) about the size of female customers breasts and butts and how he wanted to have sex with them; he repeatedly summoned his subordinate Rural Carrier 3 (female) to his office for the purpose of watching her walk away (a reference to looking at her backside); he repeatedly told his subordinate Rural Carrier Associate 4 (female) that he loved her breasts, described what he wanted to do with them, and expressed a wish to initiate a personal relationship with her in the future; he told his subordinate part time flexible Rural Carrier 5 (female) that he had sex in a postal delivery vehicle, in the New Tampa Office, that his main goal was to have sex in the manager’s office and there was a rumor he was having sex with her; he asked his subordinate Rural Carrier Associate 6 (female) repeatedly to come closer so he could smell her; and he repeatedly talked to his part time Rural Carrier 7 (male) about female employees butts and what he would do if he was not in management. The record contains written statements from the above-described employees. Regarding issues 2 and 4, S1 questioned Complainant about the above matters in two investigative interviews. S1 wrote that he conducted the second interview to address allegations that arose from more employees that surfaced after the first investigative interview. 2 The record shows that Complainant was actually on paid work status on October 25, 2019, and that by memo dated October 28, 2019, was notified he was on administrative (paid) leave effective October 26, 2019. He did not lose pay while in off-duty status. 2020004793 3 On April 27, 2020, S1 issued Complainant a notice of proposed removal for unacceptable conduct based on the behavior discussed above. On June 18, 2020, the Agency issued a decision implementing the proposed removal effective June 23, 2020. The decision letter advised Complainant of his right to file an appeal from the removal directly with the Merit Systems Protection Board (MSPB) and raise his claims of discrimination there or file a “mixed case” EEO complaint, but not both. In May 2020, the Agency’s EEO function completed its investigation of issues 1 - 4. On or about June 15, 2020, Complainant requested a hearing before an EEOC Administrative Judge (AJ) on his complaint. On June 29, 2020, Complainant filed an appeal with the MSPB on his removal which did not allege discrimination. On October 14, 2020, a MSPB Administrative Judge conducted a hearing on the appeal. At present, the MSPB Administrative Judge has not yet issued a decision. Meanwhile, on July 22, 2020, an EEOC AJ dismissed Complainant’s complaint under 29 C.F.R. § 1614.107(a)(4) because he elected to pursue the matters therein in the MSPB forum. The AJ reasoned that issues 1 - 4 were preliminary steps that merged into the removal. In support, the AJ cited Commission cases that ruled after a final action has been taken (here, the final removal decision), the proposal or preliminary steps merge into the final action. The Agency issued a final action fully implementing the AJ’s decision. The instant appeal followed. In its opposition to Complainant’s appeal, before he filed his brief, the Agency argues that a cursory review of the proposed removal notice and decision to remove establish that the investigative interviews formed the basis of the removal action that is before the MSPB, and accordingly issues 1 - 4 are subsumed into the removal. On appeal, Complainant argues that he did not amend his EEO complaint to include his removal. He argues that under the res judicata doctrine of issue preclusion, only issues that were actually adjudicated and necessary to the adjudication in one forum (MSPB) are subject to being barred from re-litigation in another forum (EEOC). He argues that because he did not raise discrimination before the MSPB, his EEO complaint is not subject to bar under the doctrine of issue preclusion, and more fundamentally, since the MSPB Administrative Judge has not issued a decision, there has been no prior adjudication. In its sur-reply to Complainant’s brief, the Agency cites Commission cases that ruled that when a complainant elects a forum, including the MSPB forum, he must bring all available claims in that forum, and failure to do so constitutes a waiver of those claims. 2020004793 4 ANALYSIS AND FINDINGS Because the removal decision contained election rights, we find that Complainant made an informed election to appeal his removal to the MSPB without alleging discrimination. 29 C.F.R. § 1614.302(b). Accordingly, Complainant’s choice not to raise discrimination in the MSPB forum did not preserve discrimination as a claim in the EEO process. Maximo S. v. Air Force, EEOC Appeal No. 2020003877 (Oct. 7, 2020). A proposal or preliminary step to take an action (like a proposed removal) merges with the action (like a removal decision). Roscoe P. v. Department of the Interior, EEOC Appeal No. 0120152937 (Nov. 9, 2017). We disagree with the AJ and the Agency that issue 1 merged into the removal action. Issue 1 regards S2 allegedly disparaging Complainant to a postal customer he personally knew about non-sexual matters and is completely unrelated to the charges against Complainant of sexual harassment which formed the basis of the removal decision. Accordingly, the dismissal of issue 1 is reversed. Likewise, issues in 2 - 4, concerning the investigatory interviews and emergency off-duty status, were not proposals or preliminary steps to take a final action - rather the former was a tool to learn what occurred and the latter a way to facilitate the investigation. Accordingly, we find they did not “merge” into the removal. However, claims 2 - 4 are inextricably tied to the removal action and do not independently state a claim. Accordingly, the dismissal of issues 2 - 4 is affirmed. The Agency’s final action is MODIFIED to remand issue 1 of the complaint for further processing. ORDER Within 35 calendar days of the date of this decision, the Agency shall file with the relevant EEOC Hearings Unit a request to reinstate Complainant’s hearing request on issue 1 of his complaint. At the same time, the Agency shall provide the Hearings Unit with the complaint file and a copy of this appellate decision. 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. 2020004793 5 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). 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 (M0620) The Commission may, in its discretion, reconsider this appellate decision if the 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, 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. 2020004793 6 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 (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. 2020004793 7 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 January 11, 2021 Date