Bill A.,1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Northeast Area), Agency.

Equal Employment Opportunity Commission

Nov 4, 2020

2020004587 (E.E.O.C. Nov. 4, 2020)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Bill A.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Northeast Area), Agency. Appeal No. 2020004587 Agency No. 1B-007-0017-20 DECISION On August 19, 2020, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated August 6, 2020, dismissing his complaint of unlawful employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant was formerly employed by the Agency as a Mail Handler at the Processing and Distribution Center in San Juan, Puerto Rico. On July 17, 2020, Complainant filed an equal employment opportunity (EEO) complaint alleging that the Agency discriminated against him based on his disability (intervertebral disc syndrome and degenerative disc disorder) and reprisal for prior protected EEO activity under the Rehabilitation Act when it did not comply with the order in Bill A. v. USPS, EEOC Appeal Nos. 0120182340 & 2019005819 (Feb. 26, 2020): 1. Within sixty (60) days of the date this decision is issued, the Agency shall identify all vacant, funded positions or assignments with equivalent pay and status to Complainant's Mail Handler position and determine, with Complainant's input and 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. 2020004587 2 per the requirements of the Rehabilitation Act, which of these positions he is able to perform, with or without accommodation. If such a vacant, funded position is identified, Complainant shall be placed in the position. The Agency dismissed the complaint for alleging dissatisfaction with the processing of a previously filed complaint - specifically, the complaints ruled on in EEOC Appeal Nos. 0120182340 & 2019005819. The Agency declined to implement Paragraph 1 of the Order in those decisions because Complainant previously was separated on April 17, 2019, for medical inability to perform the duties of his position. The Agency added that Complainant then filed a mixed case EEO complaint regarding his separation and a FAD was issued on December 13, 2019, which Complainant did not appeal. The instant appeal on the Agency’s instant dismissal decision followed. On appeal, Complainant argues that even if the Agency refuses to comply with Paragraph 1 of Order above, it did not address the second issue in the complaint before us. Specifically, in his response to a letter to him dated April 8, 2020, by the Agency’s Human Resources asking the geographical areas he wished to be searched per Paragraph 1 of the Order, Complainant replied in part with specific suggestions of positions and duties he could perform, and alleged he included this matter in his complaint. A review of the complaint confirms this. Complainant argues that a search is not necessary for the positions and duties he identified. ANALYSIS AND FINDINGS As an initial matter, while Complainant argues that the EEO complaint before us contained a second claim which was not addressed, we disagree. The claim he identifies is still tied to the implementation and enforcement of Paragraph 1 of the Order. It is not a separate claim. EEOC Regulation 29 C.F.R. § 1614.107(a)(8) requires an agency to dismiss a complaint that alleges dissatisfaction with the processing of a previously filed complaint. We agree with the Agency that the complaint before us falls within the scope of 29 C.F.R. § 1614.107(a)(8). We note that to enforce the order in EEOC Appeal Nos. 0120182340 & 2019005819, the EEOC’s Office of Federal Operations (OFO) opened, respectively, compliance case numbers 2020002569 & 2020002570. As of November 2, 2020, both compliance cases are still open. Complainant made submissions in both compliance cases arguing that the Agency’s reason for not complying with Paragraph 1 of the above referenced order is unjustified. For example, he argued that he did not receive a FAD on his EEO complaint about his separation, so the matter is not closed. Likewise, he provided a copy of a subsequent appeal he submitted to the Merit Systems Protection Board (MSPB) on June 25, 2020, regarding his separation which indicated he received the Agency’s “final decision letter” on June 25, 2020. We assure the parties that OFO’s compliance process is the correct avenue to address the enforcement of Paragraph 1 of the Order in the administrative process. The FAD is AFFIRMED. 2020004587 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). 2020004587 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 November 4, 2020 Date