[Redacted], Donella D., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Eastern Area), Agency.

Equal Employment Opportunity Commission

Jun 14, 2022

Appeal No. 2022002738 (E.E.O.C. Jun. 14, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Donella D.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Eastern Area), Agency. Appeal No. 2022002738 Agency No. 1C-231-0111-22 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated April 4, 2022, dismissing her 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 worked as a Mail Handler at the Agency’s Philadelphia Post Office in Philadelphia, Pennsylvania. On March 24, 2022, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of disability and reprisal for prior protected EEO activity under Section 501 of the Rehabilitation Act of 1973 when: 1. On November 15, 2021, she was placed on emergency placement; and 2. On an unspecified date subsequent to November 15, 2021, she was not paid continuation of pay (COP). 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. 2022002738 2 In its April 4, 2022, decision, pursuant to 29 C.F.R. § 1614.107(a)(2), the Agency dismissed claim 1 for untimely EEO Counselor contact. The Agency determined that Complainant did not initiate counselor contact within 45 days of being put on emergency placement on November 15, 2021. In addition, the Agency dismissed claim 2, pursuant to 29 C.F.R. § 1614.107(a)(1), for failure to state a claim. To this extent, the Agency determined that COP is a determination made by the Office of Workers Compensation Program (OWCP), and as such, it was clear that Complainant was lodging a collateral attack on the OWCP process. Complainant filed the instant appeal. CONTENTIONS ON APPEAL On appeal, as to claim 1, Complainant argues that although she was placed on emergency leave on November 15, 2021, the time period for initiating counselor contact did not begin to run on that date. She argues that nowhere in her complaint did she indicate November 15, 2021, as the date of occurrence. Rather, she argues, the alleged discriminatory action occurred sometime later and was not specifically defined by her complaint. In response, the Agency argues that Complainant's argument is against the weight of clear evidence and wholly false; Complainant was notified of the emergency placement orally and she was removed from the building on November 15, 2021. Moreover, the Agency argues that the action was memorialized in writing, signed by Complainant, on November 15, 2021. As to claim 2, Complainant argues that she has set forth an independent basis for her claim with the Agency. She alleges that the Agency improperly interfered with her COP in a retaliatory manner based upon her prior EEO activity and her disability. She further contends that nowhere in her complaint does she allege that she is challenging the determination of her COP; instead, she claims that the actions and conduct of the Agency leading up to the determination were motivated by discrimination. The Agency argues that Complainant’s allegations regarding COP are premature, untimely, and subject to mandatory dismissal for failure to state a claim. ANALYSIS AND FINDINGS Untimely EEO Counselor Contact EEOC Regulation 29 C.F.R. §1614.107(a)(2) states that the Agency shall dismiss a complaint or a portion of a complaint that fails to comply with the applicable time limits contained in §1614.105, §1614.106 and §1614.204(c), unless the Agency extends the time limits in accordance with §1614.604(c). EEOC Regulation 29 C.F.R. §1614.105(a)(1) provides that an aggrieved person must initiate contact with an EEO Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within 45 days of the effective date of the action. 2022002738 3 EEOC regulations provide that the Agency or the Commission shall extend the time limits when the individual shows that he was not notified of the time limits and was not otherwise aware of them, that he did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence he was prevented by circumstances beyond his control from contacting the Counselor within the time limits, or for other reasons considered sufficient by the Agency or the Commission. 29 C.F.R. § 1614.105(a)(2). Here, Complainant argued that the time limit to contact an EEO Counselor for claim 1 began on an unspecified date after November 15, 2021. We disagree and find that the clock began running on November 15, 2021. On this date, as noted by the Agency, Complainant signed a document establishing her emergency placement. See Report of Investigation at 40-41. As noted above, the Commission has adopted a "reasonable suspicion" standard to determine when the 45-day limitation period is triggered. See Norwood v. Dep’t of Agric., EEOC Appeal No. 01A45872 (Dec. 14, 2004); Howard v. Dep’t of the Navy, EEOC Request No. 05970852 (Feb. 11, 1999). The Commission has found that because the limitation period for contacting an EEO Counselor is triggered by the reasonable suspicion standard, waiting until one has “supporting facts” or “proof” of discrimination before initiating a complaint can result in untimely Counselor contact. See Bracken vs. U.S. Postal Serv., EEOC Request No. 0590065 (Mar. 29, 1990). In the present case, we find that Complainant should have reasonably suspected discrimination within 45-days when the Agency placed her on emergency leave on November 15, 2021. On appeal, Complainant has not presented any persuasive arguments or evidence warranting an extension of the time limit for initiating EEO Counselor contact. Therefore, we find that the Agency's dismissal pursuant to 29 C.F.R. § 1614.107(a)(2), on the grounds of untimely EEO Counselor contact, was proper. Failure to State a Claim 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, disabling condition, genetic information, or reprisal. 29 C.F.R. §§ 1614.103, .106(a). The Commission's federal sector case precedent has long defined an "aggrieved employee" as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Diaz v. Dep’t of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994). Here, to the extent that Complainant is asserting that the Agency interfered with her COP, a workers' compensation benefit, we agree that the matter is a collateral attack on the OWCP process. 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 Def., EEOC Request No. 05970596 (July 30, 1998); Kleinman v. U.S. Postal Serv., EEOC Request No. 05940585 (Sept. 22, 1994); Lingad v. U.S. Postal Serv., EEOC Request No. 05930106 (June 25, 1993). 2022002738 4 The EEO process is not the proper forum for Complainant to have raised this challenge. As Complainant is challenging actions directly related to the implementation of her COP, the proper forum for Complainant to have raised her challenges to actions which occurred during the OWCP process is within that adjudicatory forum itself. Complainant cannot attempt to use the EEO process to collaterally attack benefits decisions made during the OWCP adjudicatory process. See Nobis v. U.S. Postal Serv., EEOC Appeal No. 0120081269 (Mar. 20, 2008) (dismissing a denial of COP claim as a collateral attack and therefore fails to state an actionable claim). Therefore, we find that the Agency’s dismissal of claim 2 was appropriate. CONCLUSION Accordingly, we AFFIRM the Agency’s final decision dismissing the complaint. 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. 2022002738 5 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. 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 June 14, 2022 Date