[Redacted], Marleen G., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity Commission

Mar 23, 2023

Appeal No. 2023000173 (E.E.O.C. Mar. 23, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Marleen G.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service, Agency. Appeal No. 2023000173 Agency No. 1F-641-0195-22 DISMISSAL OF APPEAL Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) regarding her claim 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. At the relevant time, Complainant worked at an Agency facility. On May 25, 2022, Complainant initiated contact with an Equal Employment Opportunity (EEO) Counselor alleging, on May 21, 2022, the Agency discriminated against her based on her race (Black) and sex (female) when two coworkers (one male and one female) approached her on an Agency loading dock and attempted to “intimidate and bully” her. Complainant alleged that the male coworker approached her chest- to-chest yelling and the female coworker stepped behind her asking, “why was I texting her man?” Complainant claimed Agency management failed to take appropriate action when she reported them. In a statement for the record, the assigned EEO Counselor stated he informed Complainant of the EEO process and her options, but Complainant made the decision not to move forward with her complaint. Instead, the EEO Counselor stated that Complainant informed him that she would speak with the new Senior Manager, who was “cool” compared to the former manager, and he did not hear from her again. 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. 2023000173 2 The record contains a Withdrawal of Complaint of Discrimination for Agency No. 1F-641-0195- 22, electronically signed by Complainant and dated September 12, 2022. The Withdrawal stated, “I fully understand that by withdrawing the complaint or allegations, I am waiving my rights to any further appeal of this complaint or allegations through the EEO process. I further stipulate that my withdrawal did not result from harassment, threat, coercion, intimidation, promise or inducement.” The EEO Counselor did not issue Complainant a Notice of Right to File a Formal Complaint (NORF) after she withdrew from the process. Subsequently, it appears Complainant’s attorney attempted to have the matter reinstated. Complainant filed the instant appeal. On appeal, Complainant alleged, in August, her non-legal representative did not show up for an Alternative Dispute Resolution (ADR) session and the EEO Counselor informed her that she could not participate in ADR without a representative. She alleged further, on September 12, 2022, the EEO Counselor informed her that she could not proceed with her claim because she could not allege harassment by coworkers. Complainant stated that the EEO Counselor motivated her to withdraw her claim and suggested she file a new complaint based on sexual harassment.2 Complainant stated that she was unrepresented at the time and this matter was her first EEO claim so she relied on the counselor’s statements. Complainant stated that she later hired an attorney who informed her that EEO Counselor’s advice was incorrect, and the attorney attempted to resolve the matter, but the counselor refused to issue a NORF for Agency No. 1F-641-0195-22. Complainant stated that she filed this appeal to request reinstatement of the matter. We have previously held that a complainant may not request reinstatement of an informal complaint unless the complaint was the subject of a settlement agreement that was subsequently breached. See Allen v. Dep’t of Defense, EEOC Request No. 05940168 (May 25, 29915). That is not the case here. The evidence shows that Complainant withdrew Agency No. 1F-641-0195-22 during the informal EEO counseling stage, depriving the Commission of jurisdiction over the matter. Although it appears that Complainant attempted to reinstate the matter after the withdrawal, the Commission has held that once a complainant has withdrawn an informal complaint, absent a showing of coercion, the complainant may not reactivate the EEO process by filing a formal complaint on the same issue. See Allen v. Dep’t of Defense, EEOC Request No. 05940168 (May 25, 1995); Fuson v. Dep’t of the Navy, EEOC Request No. 05932943 (July 7, 1994); Ritchie v. Dep’t of Veterans Affairs, EEOC Appeal No. 01934486 (January 7, 1994). We find that Complainant has not shown coercion here. Based on the above, Complainant’s appeal is DISMISSED. 2 We note the record suggests Complainant filed a subsequent complaint, identified as Agency No. 1F-641-0286-22, alleging, in September 2022, a coworker groped Complainant and management yelled at her to clock out. 2023000173 3 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. 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). 2023000173 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 March 23, 2023 Date