[Redacted], Reginald K., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency.

Equal Employment Opportunity Commission

Dec 5, 2022

Appeal No. 2022004749 (E.E.O.C. Dec. 5, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Reginald K.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 2022004749 Agency No. 4G-350-0247-22 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated August 1, 2022, dismissing his 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., and 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 Supervisor of Customer Services at the Agency’s postal facility in Gardendale, Alabama. On July 11, 2022, Complainant filed a formal complaint alleging that the Agency subjected him to hostile workplace discrimination on the bases of race (African American), sex (male), and disability when: 1) On April 16, 2019, after being attacked by a co-worker, his supervisor purportedly stated, “you are a man, this should not be a big deal.” 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. 2022004749 2 2) In December 2021, his request for leave was not granted and he was charged Absent without Leave (AWOL). 3) Beginning on January 19, 2022, through February 14, 2022, he was issued Letters of Demand regarding his health benefit coverage. 4) Beginning on February 15, 2022, and continuing, he was issued Letters of Demand regarding his health benefit coverage. 5) On June 21, 2022, he received a Debt Collection Letter (Letter of Demand) for $20,563.91. The Agency dismissed claims 1-3 for untimely EEO Counselor contact, pursuant to 29 C.F.R. § 1614.107(a)(2). The Agency noted that Complainant did not claim he was unaware of the time limit for contacting an EEO Counselor and the record contains an affidavit attesting to the fact that the EEO poster is appropriately displayed at his facility. The Agency alternatively dismissed claim 1 for failure to state a claim, noting that the issues raised in claim 1 are merely a reiteration and extension of a previous complaint, identified as Agency Case No. 4G-350-0129-19. The Agency also dismissed claims 3-5 for failure to state a claim. The Agency reasoned that Complainant was lodging a collateral attack on the proceedings of another forum - specifically, the administrative functions of the Office of Personnel Management and the proceedings of the Debt Collection Act process. The instant appeal followed. On appeal, Complainant’s legal counsel argues, among other things, that Complainant’s overall complaint states a viable, harassment claim. ANALYSIS AND FINDINGS Untimely EEO Counseling Contact 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. Concerning allegations 1-2, the record discloses that the most recent, alleged discriminatory event occurred in December 2021, but Complainant did not initiate contact with an EEO Counselor until April 1, 2022, which is well beyond the forty-five (45) day limitation period. On appeal, Complainant has presented no persuasive arguments or evidence warranting an extension of the time limit for initiating EEO Counselor contact. 2022004749 3 Regarding Complainant’s argument on appeal that Complainant has stated a hostile work environment complaint, we note the Supreme Court has held that a complainant alleging a hostile work environment will not be time barred if all acts constituting the claim are part of the same unlawful practice and at least one act falls within the filing period. See Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (June 10, 2002). Here, however, the various Agency acts comprising Complainant’s allegation 1 and 2 do not appear to be part of the same purported unlawful practice concerning the timely raised allegations in 3-5. Therefore, we conclude that Morgan is not applicable. Failure to State a Claim With respect to allegations 3-5, the Commission finds that Complainant is contesting repayment of monies purportedly owed. For this reason, Complainant fails to state a claim under the EEOC regulations. Commission precedent has long held that challenges to an agency’s actions under the Debt Collection Act are not within the scope of the EEO complaint process. Baughman vs. Department of Army, EEOC Appeal No. 01900865 (February 26, 1990); Amato v. Department of the Army, EEOC Request No, 0520070240 (July 18, 2007). The Debt Collection Act, 31 U.S.C. 3711 et seq. mandates that monetary disputes involving an agency of the United States government and any claimed debtor must be resolved through the provisions of the Debt Collection Act. The proper forum for Complainant to challenge the appropriateness of the collection process and validity of his debt is through the administrative process of the Debt Collection Act. As Complainant is essentially alleging violations of the Debt Collection Act by challenging the existence of the debt, the Commission determines that his allegations are not within the scope of the EEO complaint process and, as such, fail to state a claim. We note that the Agency properly advised Complainant how to challenge the appropriateness of the collection process through the administrative process under the Debt Collection Act. CONCLUSION Accordingly, the Agency's final decision dismissing Complainant's complaint 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. 2022004749 4 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). 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. 2022004749 5 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 December 5, 2022 Date