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

Equal Employment Opportunity Commission

Mar 30, 2023

Appeal No. 2023000411 (E.E.O.C. Mar. 30, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Vance C.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. Appeal No. 2023000411 Agency No. 1D-652-0030-22 DECISION Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated October 19, 2022, 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Tractor Trailer Operator, Grade 08P, Tour 2 at the Agency’s Carol Stream Processing and Distribution Center in Illinois. On June 5, 2022, Complainant initiated equal employment opportunity (EEO) contact alleging that the Agency discriminated against him on the bases of race (mixed race, Sicilian), national origin (other), sex (male), religion (unspecified), and reprisal for prior protected EEO activity (prior complaints) when: 1. on May 24, 2022 and May 25, 2022, management scheduled Complainant to work the holiday, which were his nonscheduled days, and 2. on June 4, 2022, management denied Complainant union time despite an 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. 2023000411 2 October 21, 2020 settlement agreement stating that he could have such time whenever requested. The Agency issued a Notice of Right to File Individual Complaint (NORF) dated August 20, 2022. The NORF stated, “[Y]ou have the right to file a formal complaint within 15 calendar days of the date you receive this notice.” The assigned EEO Specialist certified that the NORF was sent via U.S. Postal Service on August 20, 2020.2 Complainant signed a Confirmation of Receipt stating that he received a NORF for the instant complaint in-person on September 13, 2022. Complainant filed a formal EEO complaint, which was date-stamped by the Agency “received October 6, 2022.” Complainant signed and dated the formal complaint September 24, 2022. There is no visible postmark on the envelope, but it is a first-class mail postage and fees paid postal envelope, is addressed in full to “NEEOISO - Formal Complaint,” and contains a return address. The Agency dismissed Complainant’s complaint as untimely pursuant to 29 C.F.R. § 1614.107(a)(2). It also dismissed claim (2) pursuant to 29 C.F.R. § 1614.107(a)(1) for failure to state a claim. Specifically, the Agency stated that Complainant filed his complaint after September 28, which was the 15th calendar day after his acknowledged receipt of the NORF. The Agency stated that Complainant sent his complaint in an Agency “penalty envelope” and that it did not contain a postmark, but was received in the EEO Office on October 6, 2022. As to (2), the Agency stated that Complainant’s claim was a collateral attack on the negotiated grievance process, so it failed to state a claim. ANALYSIS AND FINDINGS Prior to a request for a hearing in a matter, an Agency shall dismiss a complaint pursuant to 29 C.F.R. § 1614.107(a)(1) for procedural reasons, such as failing to comply with applicable time limits or failure to state a claim. We modify the Agency’s dismissal here. EEOC Regulation 29 C.F.R. § 1614.106(b) requires a complaint must be filed within 15 calendar days of receipt of the Notice of Right to file a Complaint. If a complaint is mailed, the date of filing is the postmark date. Section 29 C.F.R. § 1614. 107(a)(2) provides that an agency shall dismiss a complaint that fails to comply with the applicable time limits contained in §§ 1614.105, 1614.106 and 1614.204(c). Here, the Agency dismissed the formal complaint by finding that Complainant received the NORF on September 13, 2022, but the Agency did not receive his formal complaint until October 6, 2022. The Agency noted that the formal complaint arrived in a “penalty envelope,” which was inappropriate to use to file an EEO complaint. The internal envelope did not contain a postmark, but Complainant dated the formal complaint as September 24, 2022. 2 After the original NORF was sent, Complainant informed the Agency of a change of address and received a duplicate NORF in September in-person. 2023000411 3 Where, as here, there is an issue of timeliness, “[a]n agency always bears the burden of obtaining sufficient information to support a reasoned determination as to timeliness.” Guy v. Dep’t of Energy, EEOC Request No. 05930703 (January 4, 1994) (quoting Williams v. Dep’t of Defense, EEOC Request No. 05920506 (August 25, 1992)). The Agency, in this case, has failed to meet this evidentiary burden. Our examination of the record reveals that the formal complaint envelope does not contain a postmark; Complainant dated the formal complaint with September 24, 2022, which is within the 15-day statutory timeframe; and the Agency failed to show that the complaint was not mailed on the date it was signed. The Agency did not show that the complaint was not filed within the requisite 15-day time period. Thus, the complaint was improperly dismissed for an untimely formal complaint. Regarding claim 2, Complainant alleges, in June 2022, management failed to give him union time. 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 Defense, EEOC Request No. 05970596 (July 30, 1998); Kleinman v. U.S. Postal Service, EEOC Request No. 05940585 (September 22, 1994); Lingad v. U.S. Postal Service, EEOC Request No. 05930106 (June 25, 1993). The proper forum for Complainant to raise challenges relating to union time is within the collective bargaining process. Thus, claim 2 was properly dismissed for failure to state a claim. CONCLUSION After careful review of the record, we REVERSE claim 1 and REMAND it for further processing consistent with this decision and the Order below. For claim 2, we AFFIRM procedural dismissal. ORDER (E0618) The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. § 1614.108. The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision was issued. The Agency shall issue to Complainant a copy of the investigative file and also shall notify Complainant of the appropriate rights within one hundred fifty (150) calendar days of the date this decision was issued, unless the matter is otherwise resolved prior to that time. If the Complainant requests a final decision without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of Complainant’s request. As provided in the statement entitled "Implementation of the Commission's Decision,” the Agency must send to the Compliance Officer: 1) a copy of the Agency’s letter of acknowledgment to Complainant, 2) a copy of the Agency’s notice that transmits the investigative file and notice of rights, and 3) either a copy of the complainant’s request for a hearing, a copy of complainant’s request for a FAD, or a statement from the agency that it did not receive a response from complainant by the end of the election period. 2023000411 4 IMPLEMENTATION OF THE COMMISSION’S DECISION (K0719) Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission’s corrective action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents in the digital format required by the Commission, referencing the compliance docket number under which compliance was being monitored. Once all compliance is complete, the Agency shall submit via FedSEP a final compliance report in the digital format required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation when previously not uploaded, and the Agency must send a copy of all submissions to the Complainant and his/her representative. If the Agency does not comply with the Commission’s order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission’s order prior to or following an administrative petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R. § 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled “Right to File a Civil Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. § 1614.409. Failure by an agency to either file a compliance report or implement any of the orders set forth in this decision, without good cause shown, may result in the referral of this matter to the Office of Special Counsel pursuant to 29 C.F.R. § 1614.503(f) for enforcement by that agency. 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. 2023000411 5 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). COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (T0610) This decision affirms the Agency’s final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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. 2023000411 6 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 30, 2023 Date