[Redacted], Greta F., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency.Download PDFEqual Employment Opportunity CommissionNov 3, 2022Appeal No. 2022003765 (E.E.O.C. Nov. 3, 2022) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Greta F.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. Appeal No. 2022003765 Agency No. 6X250001222 DECISION Complainant filed appealed with the Equal Employment Opportunity Commission (“EEOC” or “Commission”) from the Agency's May 26, 2022 dismissal of her complaint alleging 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 Human Resources (“HR”) Labor Relations Clerk, Level 6, for the Agency’s Southern Area, based in Oklahoma City, Oklahoma. On May 6, 2022, Complainant filed a formal EEO complaint alleging that the Agency subjected her to discrimination, including a hostile work environment, on the basis of her race (African American). The Agency, in its decision, identified the claims as follows: 1. [In the Spring of 2021],2 Complainant’s detail to Retail Support was ended after only two months, 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 Date based on EEO Counselor Report and Complainant’s account of events on appeal. 2022003765 2 2. On unspecified dates, a Human Resources Manager [(“Manager”)] told lies about Complainant and made false allegations against her to other employees, 3. In March 2021, [Manager] sent employees to talk to Complainant to try to convince her to apologize to [Manager] [for accepting a detail assignment without Manager’s permission], 4. In November 2021, and continuing, [Manager] had the IT Department monitor Complainant’s computer and phone, 5. In December 2021, [Manager] attempted to turn other clerks against Complainant when she was assigned her own office, and, 6. On February 9, 2022, [Manager] interrupted Complainant’s team meeting and assigned a task to her even though Complainant did not report to [Manager]. In her complaint, Complainant further alleges that Manager subjected her to harassment for over a year, and that Manager was deliberately blocking her advancement within the Agency. The Agency dismissed the matter pursuant to 29 C.F.R. § 1614.107(a)(1) for failure to state a claim, finding that Complainant did not raise a covered basis in her formal complaint. The instant appeal followed. ANALYSIS AND FINDINGS To successfully state a claim pursuant to 29 C.F.R. §1614.107(a)(1), a complaint must, among other things, identify an alleged basis of discrimination (i.e. race, sex, age, national origin, color, religion, disability, and reprisal for prior EEO activity) within the purview of EEO law and regulations. If a complaint fails to clearly identify a covered basis within our jurisdictional purview, then it must be dismissed. See Emmanuel L. v. Dep't of the Air Force, EEOC Appeal No. 0120171680 (July 11, 2017); but see Doria D. v. United States Postal Serv., EEOC Appeal No. 2019005199 (Nov. 15, 2019) (reversing dismissal for failure to state a claim where, although the complainant did not check the box to identify protected bases on her formal complaint form, the record reflected that she raised them during the processing of her complaint). It is the burden of the Agency to provide evidence or proof to substantiate its final decision. See Complainant v. Dep't of Commerce, EEOC Appeal No. 0120142525 (Nov. 25, 2014) quoting Marshall v. Dep't of the Navy, EEOC Request No. 05910685 (Sept. 6, 1991). Here, the Agency notes that the directions accompanying the EEO complaint form state that an EEO complaint must contain the specific type of discrimination alleged. In addition, both the EEO complaint form and the EEO counseling documents listed all of the protected bases covered by the statutes enforced by the EEOC, alongside boxes for Complainant to mark. 2022003765 3 The record reflects that, although Complainant completed other portions of these forms and provided supplemental attachments, she neglected to mark any of the boxes for protected bases. Complainant does not dispute that the instructions and complaint forms the Agency provided placed her on notice that she was required to identify a basis. Nevertheless, the Commission has broadly applied the decision in Sanchez v. Standard Brands, Inc., 431 F.2d 455, 465 (5th Cir. 1970). Under Sanchez, complainants are given liberal latitude to clarify the bases of discrimination in their charges and to add bases of discrimination after filing their charges. The Sanchez court identified at least three reasons why a complainant may fail to identify a basis of discrimination in a complaint: (1) they may not be aware of an employer's motivation; (2) they may not fully comprehend the distinction between bases; or (3) they may be unschooled and unsophisticated in the use of forms. Applying Sanchez, the Commission has held that a complainant may amend his or her complaint to add or delete bases without changing the identity of the claim. See, e.g., Dragos v. U.S. Postal Service, EEOC Request No. 05940563 (Jan. 19, 1995). In the instant case, Complainant contends on appeal that her complaint alleges discrimination based on her race (African American). She offers no explanation for her prior failure to identify a basis, and there is no evidence that any of the three examples provided by the Sanchez court are analogous to the instant circumstances. Moreover, the record reflects Complainant theorized that Manager’s actions were motivated by a fear that she would discover and reveal that Manager, and others, were engaging in “potentially criminal activities.” Such a concern falls outside the categories protected by the EEO statutes. After reviewing the instant record, including the attachments to Complainant’s formal complaint, the Commission finds no language that could be construed as referencing a protected category as the basis for the alleged discriminatory actions. See Doria D. New Issues Raised on Appeal For the first time, on appeal, Complainant alleges her supervisor informed her that the District Manager (white/Caucasian) said Complainant was not eligible for EAS details and must compete for any EAS vacancies. She asserts that, contrastingly, two white/Caucasian coworkers were permitted to continue their details to EAS positions that were eliminated by the RIF. Further, contends Complainant, Manager instructed Agency officials to select these coworkers for two open EAS positions when they applied. In particular, Complainant recalls that the other PS-6 HR Clerk was selected for an EAS-17 HR Specialist position, even though she believed he was ineligible and there was a more qualified applicant. If Complainant wishes to pursue these new matters through the EEO process, then she must contact an EEO Counselor pursuant to 29 C.F.R. § 1614.105. See Hall v. United States Postal Serv., EEOC Appeal No. 0120031342 (April 24, 2003). CONCLUSION Accordingly, the Agency's decision to dismiss Complainant's complaint is AFFIRMED. 2022003765 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). 2022003765 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 November 3, 2022 Date Copy with citationCopy as parenthetical citation