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

Equal Employment Opportunity Commission

Jan 26, 2023

Appeal No. 2022004517 (E.E.O.C. Jan. 26, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Matilde H.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. Appeal No. 2022004517 Agency No. 4G-770-0212-22 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated July 22, 2022, dismissing a formal complaint alleging 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 During the period at issue, Complainant worked for the Agency as a City Letter Carrier, level 6, at the Agency’s Main Post Office in Sugarland, Texas. On March 24, 2022, Complainant initiated EEO Counselor contact. Informal efforts at resolution were not successful. On June 29, 2022, Complainant filed a formal EEO complaint alleging that the Agency subjected her to discrimination on the bases of her race (African American), color (Black), and in reprisal for prior protected EEO activity when: 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. 2 2022004517 1. Beginning 2019 through February 7, 2022, Complainant alleged that the union steward did not properly file her grievances, and the Postmaster and the union steward worked closely together with grievances involving certain letter carriers. 2. In June 2021, Complainant was charged Leave without Pay (LWOP).2 3. Beginning on or about February 7, 2022, and ongoing, Complainant alleged that the Postmaster and the union steward worked closely together with grievances involving certain letter carriers. 4. On February 14, 2022, Complainant became aware the union steward sent a text message to another co-worker and used the “N” word. Complainant stated when she notified management, they took no action. On July 22, 2022, the Agency issued a final decision dismissing the formal complaint on various grounds. The Agency dismissed claims 1 and 2 pursuant to 29 C.F.R. § 1614.107(a)(2), for untimely EEO Counselor contact). The Agency dismissed claims 1, 3, and 4 pursuant to 29 C.F.R. § 1614.107(a)(1), for failure to state a claim. The Agency also dismissed claim 2 on the alternative grounds of raising the same matter in a prior complaint. The instant appeal followed. ANALYSIS AND FINDINGS Untimely Raised - Claim 2 EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five (45) days of the effective date of the action. Here, the record establishes that Complainant initiated EEO counseling on March 24, 2022, and raised, among other things, her objection to being charged with LWOP in June 2021 (Claim 2). This was well beyond the 45-day regulatory limitation period and supports the Agency’s decision to dismiss Claim 2 as untimely raised. Failure to State a Claim Under the regulations set forth at 29 C.F.R. Part 1614, an agency shall accept a complaint from an 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 2 The record supports that Complainant stated, on June 29, 2022, that she was paid for the LWOP. 3 2022004517 disabling condition. 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 (April 21, 1994). If complainant cannot establish that s/he is aggrieved, the agency shall dismiss a complaint for failure to state a claim. 29 C.F.R. § 1614.107(a)(1). Claims 1 and 3 A fair reading of these two claims indicates that Complainant is not raising a viable claim of employment discrimination by the Agency, but rather is asserting that the union was not properly representing employees and was colluding with management in the grievance process. As such, it appears Complainant is attempting to lodge an improper collateral attack on another adjudicatory process (the negotiated grievance process). See Wills v. Department of Defense, EEOC Request No. 05970596 (July 30, 1998). In essence, these claims are more in the nature of unfair labor practice charges rather than discrimination claims and, as such, would have been more properly raised with the National Labor Relations Board rather than in the EEO complaint process. Therefore, these claims were properly dismissed by the Agency. Claim 4 In this claim, Complainant alleges that a highly charged racial slur was used by her union steward and Agency management did nothing.3 While this claim also involves the interplay between the union and management, we conclude that unlike Claims 1 and 3, Complainant has stated a viable discriminatory harassment claim. The Agency as an employer may be liable under Title VII for failing to take action to remedy the harassment of its employees by third parties. Beckford v. Dep't of Corr., 605 F.3d 951, 957-58 (11th Cir. 2010) (Department of Corrections could be liable under Title VII for failing to remedy sexual harassment of its female employees by prison inmates). This is particular true here where the union steward was also an employee of the Agency even though she was acting in her union capacity. Therefore, we conclude that the Agency erred is dismissing this claim without an investigation to develop the necessary evidence to determine whether or not a violation of Title VII occurred. CONCLUSION The Agency's final decision dismissing the formal complaint is AFFIRMED in part and REVERSED in part. The dismissal of Claims 1, 2 and 3 is affirmed for the reasons discussed above. Claim 4 is remanded to the Agency for further processing in accordance with the following Order. 3 The Commission has previously determined that the use of the “n-word” is a “highly charged epithet” which “dredge[s] up the entire history of racial discrimination in this country” and may establish a violation of Title VII. See Brooks v. Dep't of the Navy, EEOC Request No. 05950484 (June 25, 1996). 4 2022004517 ORDER (E0618) The Agency is ordered to process the remanded claim (Claim 4) in accordance with 29 C.F.R. § 1614.108 et seq. 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. 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. 5 2022004517 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). 6 2022004517 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. 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 26, 2023 Date