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

Equal Employment Opportunity Commission

Feb 25, 2021

Appeal No. 2020005192 (E.E.O.C. Feb. 25, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Wes S.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Western Area), Agency. Appeal No. 2020005192 Agency No. 4F-900-0179-20 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated August 18, 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., 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 At the time of events giving rise to this complaint, Complainant worked as a City Carrier at the Agency’s Torrance Post Office in Torrance, California. On April 23, 2020, Complainant initiated EEO contact alleging that the Agency discriminated against him on the bases of race (Caucasian), sex (male), color (White), disability (injury to left foot and both elbows), age (62), and reprisal for prior protected EEO activity (prior EEO complaints) when, on January 14, 2020 and ongoing, management failed to declare Complainant a successful bidder for a Truck Collection Route - Job ID: 95042804, cancelled the posting, and did not place anyone in the position. Subsequently, Complainant filed a formal EEO complaint reiterating the same. 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. 2020005192 2 In its August 18, 2020 final decision, the Agency dismissed Complainant’s claim pursuant to 29 C.F.R. §§ 1614.107(a)(1) and (a)(2), for failure to state a claim and untimely EEO Counselor contact. The Agency stated that information about EEO contact timeframes is properly posted and Complainant is familiar with the EEO process as he has filed ten prior EEO complaints. The Agency also stated that Complainant cannot show personal harm or injury due to the Agency’s action of cancelling the vacancy announcement and not filling the position. The Postmaster stated that the district office cancelled the vacancy announcement before the closing date in January 2020. Complainant filed the instant appeal. On appeal, Complainant stated, on April 22, 2020, he contacted the Agency with the instant matter to amend a formal complaint he filed on November 30, 2018. He stated that the November 30, 2018 complaint alleged discrimination based on reduction of work hours from eight per day to one per day and denial of bid award, and was docketed as Agency No. 4F-900-0018-19. Complainant stated that the Agency issued a final decision for 4F-900-0018-19 on July 18, 2019 and he filed an appeal with the Merit Systems Protection Board. Complainant stated that he was qualified for the Truck Collection Route position and it was within his medical restrictions, but instead of placing him in the position, the Agency used different employees working overtime to perform the duties of the position. Complainant stated that there is no specific date the discrimination occurred because it occurs each day he is not placed in the position. (Complainant noted that the incumbent of the position left in December 2019.) Complainant stated that other employees told him that he was the successful bidder but the Agency never told him that he won the bid or that the announcement was cancelled. Complainant stated that the bid closed on January 24, 2020 and it was reasonable for him to wait to hear the selection of the successful bidder. ANALYSIS AND FINDINGS The regulation set forth at 29 C.F.R. § 1614.107(a)(1) provides, in relevant part, that an agency shall dismiss a complaint that 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, disabling condition, genetic information, or reprisal. 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). A cancellation of a vacancy announcement generally does not render a complainant aggrieved. Grace v. Dep’t of the Army, EEOC Request No. 05940969 (May 18, 1995); Raheem v. Dep’t of Commerce, EEOC Appeal No. 01A05334 (August 28, 2000). However, a complaint may state a claim where a complainant claims that the agency canceled a vacancy after making a selection and that the cancellation occurred under circumstances suggesting a deliberate intent to avoid selecting him. See Van Nest v. Dep’t of the Army, EEOC Request No. 05960752 (November 20, 1998) In the instant case, however, the announcement was cancelled prior to the announcement 2020005192 3 closing date. Management never informed Complainant that he was selected. Instead the Agency opted to have employees accrue overtime to perform the duties of the position vacated in December 2019. The cancellation affected all candidates who already submitted and those who planned to submit applications prior to the closing date. We agree with the Agency, under the particular circumstances presented herein, Complainant has failed to state a claim of discrimination. Because we are affirming the dismissal of the complaint for failure to state a claim, we find no need to address the alternate basis of dismissal for untimely EEO contact. CONCLUSION Accordingly, the agency's decision to dismiss the instant complaint for failure to state a claim was proper and 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. 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. 2020005192 4 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. 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. 2020005192 5 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 25, 2021 Date