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

Equal Employment Opportunity Commission

Jan 31, 2023

Appeal No. 2023000490 (E.E.O.C. Jan. 31, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Irina T.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. Appeal No. 2023000490 Agency No. 1C-531-0251-22 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from an Agency final decision, dated August 16, 2022, dismissing a formal complaint alleging 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. The Commission accepts the appeal in accordance with 29 C.F.R. § 1614.405. BACKGROUND During the relevant time, Complainant worked as a Mail Handler at the Agency’s National Distribution Center in Memphis, Tennessee. On July 29, 2022, Complainant filed a formal complaint based on disability. On July 16, 2022, the Agency issued a final decision. The Agency framed the claim as follows: On June 15, 2022, management spread an absorbent chemical on the entire floor of the processing plant. The Agency dismissed the formal complaint, finding that it addressed a safety concern, and was “not an appropriate issue to raise with the EEOC”. 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. 2023000490 2 The Agency reasoned that Complainant was raising a matter under the Occupational Safety and Health Administration’s jurisdiction. Further, the Agency stated that the claim was a generalized grievance. Concluding that the complaint failed to state a claim, the Agency dismissed the case pursuant to 29 C.F.R. § 1614.107(a)(1). ANALYSIS AND FINDINGS 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). The Commission 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). The regulation 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. Here, Complainant claimed that a manager intentionally spread a chemical on damp plant floors, which should only be used for small spills. She stated that the absorbent was so heavily applied that equipment operating at the time kicked up dirt and dust, without adequate ventilation. On appeal, Complainant acknowledges that dust masks were available, but that they were not near the plant entrance and that ventilation masks were not provided. Complainant also asserts that her sinuses were aggravated. Generally, allegations of discrimination relating to workplace safety or an agency's failure to report or comply with workplace safety standards are under the jurisdiction of the Department of Labor's Occupational Health and Safety Administration (“OSHA”), and cannot be processed in the EEO complaint process. See Complainant. v. U.S. Postal Serv., Appeal No. 0120161563 (Aug. 12, 2016); Complainant v. U.S. Postal Serv., Appeal No. 0120151653 (Aug. 14, 2015); Grant-Garrett v. U.S. Postal Serv., Appeal No. 01A61832 (Jul. 21, 2006). Complainant has alleged that all the employees in her workplace, including herself, were subjected to an unsafe work environment. If Complainant wishes to pursue her claims related to the health and safety of her working conditions, the proper venue is OSHA. Additionally, the instant formal complaint constitutes a generalized grievance. The matter raised by Complainant - hazards created by the application of a chemical on the entire plant floor - impacts all the employees in his workplace. She has not alleged a personal loss or harm due to his protected basis. See Warth v. Seldin, 422 U.S. 490, 499 (1975); Crandall v. Dep’t of Veterans Affairs, EEOC Request No. 05970508 (Sept. 11, 1997) (claim that nurse practitioners in one unit received more favorable treatment than nurse practitioners in other units was a generalized grievance). 2023000490 3 CONCLUSION The Agency’s final decision dismissing the complaint for failure to state a claim was proper and is AFFIRMED. 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. 2023000490 4 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 January 31, 2023 Date