[Redacted], Whitney B., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Capital Metro Area), Agency.Download PDFEqual Employment Opportunity CommissionMar 24, 2021Appeal No. 2021001657 (E.E.O.C. Mar. 24, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Whitney B.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Capital Metro Area), Agency. Appeal No. 2021001657 Agency No. 4K-280-0270-20 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated December 7, 2020, dismissing a formal complaint of unlawful employment discrimination alleging violations 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 During the period at issue, Complainant worked as a Supervisor, Customer Service, at the Agency’s facility in Charlotte, North Carolina. On September 27, 2020, Complainant initiated EEO contact. Informal efforts to resolve his concerns were unsuccessful. On November 13, 2020, Complainant filed a formal EEO complaint alleging that the Agency subjected him to discrimination on the bases of race (Caucasian), national origin (American), sex (male), color (white), age, 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. 2021001657 2 In its November 13, 2020 final decision, the Agency determined that the formal complaint was comprised of the following claims: 1. On or about September 4, 2020, [Complainant] was notified that his FMLA recertification requests [were] denied; and 2. From October 22, 2019-May 9, 2020, [Complainant was] placed in an off- duty status, and management failed to convert the administrative leave hours to work hours when [his] discipline was reduced to a Letter of Warning (LOW). The Agency dismissed claim (1), denial of his FMLA request, for failure to state a claim. The Agency reasoned that this matter was a collateral attack on the FMLA process which is governed by the Department of Labor (DOL). The Agency dismissed claim (2), Complainant being charged administrative leave when he was in an off-duty status, for untimely EEO Counselor contact. The Agency reasoned that Complainant returned to work on May 9, 2020, but did not initiate EEO contact until September 27, 2020, outside the applicable time period. The instant appeal followed. On appeal, Complainant asserts he was not aware that his time was being coded as administrative leave while he was in an off-duty status. Complainant asserts he is not alleging a collateral attack on the FMLA process. Complainant requests that the instant complaint be remanded for an investigation. ANALYSIS AND FINDINGS Claim (1)-FMLA Eligibility We find that the Agency properly dismissed claim (1) for failure to state a claim. To the extent Complainant is alleging that the Agency found him ineligible for FMLA, we concur with the Agency that this matter is outside of the jurisdiction of the Commission. 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 Def., EEOC Request No. 05970596 (July 30, 1998); Kleinman v. U.S. Postal Serv., EEOC Request No. 05940585 (Sept. 22, 1994); Lingad v. U.S. Postal Serv., EEOC Request No. 05930106 (June 25, 1993). The proper forum for Complainant to have raised his challenges to actions which occurred during the FMLA process is within that forum. The FMLA is governed by the Department of Labor. Complainant should raise any concerns that his FMLA rights were violated to the Department of Labor. 2021001657 3 Claim (2)-Charged Administrative Leave October 8, 2019-May 8, 2020 We find that the Agency properly dismissed claim (2) for untimely EEO Counselor contact. EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five (45) days of the effective date of the action. The Commission has adopted a "reasonable suspicion" standard (as opposed to a "supportive facts" standard) to determine when the forty-five (45) day limitation period is triggered. See Howard v. Dep’t of the Navy, EEOC Request No. 05970852 (Feb. 11, 1999). Thus, the time limitation is not triggered until a complainant reasonably suspects discrimination, but before all the facts that support a charge of discrimination have become apparent. EEOC regulations provide that the agency or the Commission shall extend the time limits when the individual shows that he was not notified of the time limits and was not otherwise aware of them, that he did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence he was prevented by circumstances beyond his control from contacting the Counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission. We are not persuaded by Complainant’s assertion that he did not realize the Agency coded him with administrative leave for the time period at issue until September 2020, when he received the Agency’s denial of his FMLA request. Complainant asserts that he was placed in an off-duty status by the Agency from October 8, 2019 through May 8, 2020. Thus, we find Complainant should have been aware that the Agency was not coding his time as if he was working. In addition, Commission records for Agency Case No. 4K-280-0028-20 (a prior EEO case), which is currently pending before an EEOC Administrative Judge, reflects that the Agency issued Complainant a memorandum dated October 8, 2019 informing him he was being placed in an Emergency Placement Off-Duty Status. Furthermore, upon his return to work on May 9, 2020, Complainant should have followed up with the Agency, if he believed his administrative leave hours (the time he was in an off-duty status) should have converted to working hours. Complainant did not initiate EEO contact on this matter until September 27, 2020, outside of the applicable time period. Complainant has not presented sufficient justification for extending the applicable time limit. We AFFIRM the Agency’s final decision dismissing the formal complaint for the reasons discussed above. 2021001657 4 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). 2021001657 5 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 March 24, 2021 Date Copy with citationCopy as parenthetical citation