[Redacted], Mario K., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency.

Equal Employment Opportunity Commission

Jan 18, 2022

Appeal No. 2021005047 (E.E.O.C. Jan. 18, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Mario K.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. Appeal No. 2021005047 Agency No. 1F-741-0060-21 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated August 30, 2021, dismissing his complaint alleging unlawful employment discrimination. BACKGROUND At the time of events giving rise to this complaint, Complainant was an applicant for the position of Motor Vehicle Operator at several agency locations in California. Complainant asserts he was offered the position of Motor Vehicle Operator in Agency facilities located in San Jose, Oakland, and San Francisco, California. However, wanting to work closer to home and in order to take advantage of housing programs, he applied for the position of Motor Vehicle Operator at the Agency’s facility in Anaheim, California. Complainant was not hired for the Anaheim Motor Vehicle Operator position allegedly due to his inexperience with driving manual transmission vehicles. Complainant sought EEO counseling on June 17, 2021. He did not specify a basis for the alleged discrimination in either his EEO Contact Summary submission or during EEO counseling. On August 6, 2021, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination when, on June 4, 2021, he was not hired for the position of Motor Vehicle 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. 2021005047 2 Operator due to not being able to operate a manual transmission vehicle. In his formal complaint form, he checked a box indicating discrimination on the basis of “genetic information.” However, he did not indicate anywhere on the complaint form what he meant. On August 16, 2021, the Agency sent Complainant a letter stating that he did not allege a basis for discrimination. He was asked to notify the Agency in writing within 15 days as to the specific allegations of discrimination he was raising in his complaint. The record includes an apparent response to the Agency’s clarification letter in which Complainant notes that genetic information was the wrong type of discrimination and his discrimination claim is based on hiring. (Complaint File, pp. 31-32). The Agency then dismissed the formal complaint, pursuant to 29 C.F.R. § 1614.107(a)(1) and 29 C.F.R. § 1614.107(a)(7), for failure to state a claim on the grounds that Complainant had not alleged a basis for discrimination under the statutes covered by the EEO complaint process. The instant appeal followed. On appeal, Complainant contends he was discriminated against, along with eight others, when he was not hired for the position of Motor Vehicle Operator at the Agency’s Anaheim, California facility. He notes that was he hired for the same position at several other Agency facilities. He states he does not know the race of the other selectees and non-selectees. Complainant asserts the job vacancy announcement did not include a requirement related to operating a manual transmission vehicle. The Agency did not file a brief on appeal. 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 or disabling condition. 29 C.F.R. §§ 1614.103, .106(a). These categories form the basis or purview for discrimination that can be addressed by EEO laws. The Commission has consistently held that formal complaints which fail to identify a purview must be dismissed for failure to state a claim. See Alisia M. v. U.S. Postal Serv., EEOC No. 2021003515 (July 8, 2021); Almeda B. v. Dep’t of Veterans Affairs, EEOC No. 0120162291 (October 19, 2016; Ramirez v. U.S. Postal Service, EEOC Appeal No. 0120100944 (May 28, 2010); Fowler v. U.S. Postal Serv., EEOC Appeal No. 01A23921 (October 11, 2002), Request for Recon. Denied, EEOC Request No. 05A30247 (January 23, 2003) and Hamilton v. Dep’t of Veterans Affairs, EEOC Appeal No. 01A05759 (March 2, 2001). Here, the Agency correctly determined that Complainant has not alleged a basis of discrimination (i.e. race, sex, age, national origin, color, religion, and reprisal for prior EEO activity) that would fall within the purview of EEO law and regulations. 2021005047 3 While the Agency provided Complainant with an opportunity to clarify his complaint, Complainant still did not identify a basis of the alleged discrimination. As a result, the Agency properly dismissed Complainant's complaint for failure to state a claim. Complainant failed to identify a basis for the alleged discrimination during EEO counseling. He did list the basis of genetic information in his formal complaint, but he later noted this was wrong. He did not identify any other protected basis to which EEO laws and regulations would apply. Although he provided lengthy statements of the alleged job discrimination that he was experiencing and stating the discrimination in hiring is the type of discrimination he experienced, his complaint centers around the requirement for experience driving a manual transmission vehicle. The statement did not provide any information that would allow a basis for discrimination under EEO laws and regulations to be determined. Therefore, dismissal of the complaint was proper. CONCLUSION The Agency's final decision dismissing the formal complaint is AFFIRMED for the reasons discussed above. 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. 2021005047 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. 2021005047 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 January 18, 2022 Date