Nannie D,1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Pacific Area), Agency.

Equal Employment Opportunity Commission

Sep 29, 2020

2020003829 (E.E.O.C. Sep. 29, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Nannie D,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Pacific Area), Agency. Appeal No. 2020003829 Agency No. 4F-913-0041-20 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated April 9, 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. BACKGROUND During the period at issue, Complainant worked for the Agency as a Sales Service Distribution Associate in Pasadena, California. On January 26, 2020, Complainant initiated EEO contact regarding the instant matter. On March 13, 2020, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination in reprisal for prior protected EEO activity (prior EEO cases). On April 9, 2020, the Agency issued a final decision. The Agency determined that the formal complaint was comprised of the following claim: On May 22, November 11, and December 12, 2019, management failed to provide a work environment free of bullying and harassment from a hostile customer and refused to allow [her] to transfer to another facility. 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. 2020003829 2 The Agency dismissed the formal complaint for alleging the same claim in prior complaint, Agency Case No. 4F-913-0102-19. The Agency noted that Complainant received a Notice of Right to File a Formal Complaint on September 30, 2019 for Agency Case No. 4F-913-0102-19 but did not file a formal complaint. The instant appeal followed. ANALYSIS AND FINDINGS The Agency dismissed the instant complaint for alleging the same claim which was raised in a prior formal complaint. We find, however, that the claim is more properly analyzed in terms of whether the claim has been abandoned. The Commission has held that “a complainant who receives counseling on an allegation, but does not go forward with a formal complaint on that allegation is deemed to have abandoned it and consequently, cannot raise it in another complaint.” See Small v. U.S Postal Serv., EEOC Request No. 05980289 (July 16, 1999). Complainant previously raised with an EEO Counselor on September 13, 2019, the matter of the Agency not allowing her to work in an environment free from harassment and not transferring her to another post office. The record contains an EEO Contact Summary form for September 13, 2019. Therein, the EEO Summary form provides “management ignored my request to work at another office due to me feeling unsafe…about being verbally abused and assaulted by a customer…Postmaster as well as carrier supervisor creates a hostile work environment.” The record contains a memorandum to Complainant from an EEO Specialist dated September 18, 2019.2 Therein, the EEO Specialist informed Complainant that the September 13, 2019 informal request would be processed as Agency Case No. 4F-913-0102-19. The case details from the prior complaint, Agency Case No. 4F-913-0102-19, reflect that the Agency issued a Notice of Right to File in this matter on September 30, 2019. However, the record is devoid of evidence that Complainant filed a formal complaint in Agency Case No. 4F-913-0102-19. Thus, we find that Complainant abandoned this matter and dismissal is appropriate. Accordingly, for the reasons set forth herein, we AFFIRM the Agency’s final decision dismissing Complainant’s complaint 2 The September 13, 2019 Agency memorandum was submitted by Complainant as part of her appeal. 2020003829 3 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. 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). 2020003829 4 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 September 29, 2020 Date