[Redacted], Sherill S., 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. 2022001438 (E.E.O.C. Jan. 31, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Sherill S.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. Appeal No. 2022001438 Hearing No. 490-2022-00014X Agency No. 4G-370-0046-21 DISMISSAL OF APPEAL On January 10, 2022, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the EEOC Administrative Judge’s December 13, 2021 Order dismissing Complainant’s hearing request without prejudice pending the resolution of a union grievance concerning the same matter raised in a formal EEO complaint alleging 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. During the period at issue, Complainant worked as a Clerk/Lead Sales & Services Associate, Grade PS-07, at the Agency’s Donelson Station in Nashville, Tennessee. According to Complainant, she was physically assaulted by another employee while on duty. On July 2, 2021, Complainant filed the instant EEO complaint alleging that the Agency discriminated against her on the bases of disability (anxiety and depression) and in reprisal for 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 2022001438 prior protected EEO activity when, on May 3, 2021, Complainant was issued a Letter of Warning.2 At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing. On December 13, 2021, the AJ assigned to the case, sua sponte issued a decision to dismiss the hearing request, without prejudice, during pendency of Complainant’s union grievance involving the LOW. The AJ instructed that, within 60 days after the grievance processes concluded, Complainant would be permitted to re-assert her claim in the present matter before EEOC. The AJ further explained that if Complainant decided to re-initiate her claim, then she had to submit a new hearing request to the Commission’s Memphis District referencing the present Agency case number (4G-370-0046-21) and also reference the current EEOC hearing number (490-2022- 00014X). The instant appeal followed on January 10, 2022. On appeal and through a representative, Complainant raised multiple issues. Among other contentions, Complainant provided correspondence from her Union which stated that, as part of the grievance process, arbitration had been scheduled twice for Complainant in September 2021 and November 2021. According to Complainant, her EEO claim about the LOW remained unresolved because the Agency had cancelled the arbitration on both dates. ANALYSIS AND FINDINGS Based on our review of the record, we find that Complainant’s complaint is not properly before us on appeal for the reasons which follow. The record indicates that after Complainant filed the instant appeal, the Agency and Complainant executed a January 19, 2022 a pre-arbitration settlement agreement, G18C-4G-D21234560, regarding the LOW at issue. Under this pre-arbitration settlement agreement, the parties agreed that Complainant’s LOW in the instant complaint, 4G-18C-4G-D 21234560, was resolved. Specifically, the pre-arbitration settlement agreement provided that the Agency would rescind and remove the April 22, 2021 LOW issued to Complainant on May 3, 2021. In an addendum dated January 27, 2022, Complainant provided a letter, dated January 21, 2022, from her union acknowledging that the grievance, 4G-18C-4G-D 21234560, concerning her LOW had been settled. The letter additionally stated that an arbitration date had not been set for Complainant’s other grievance matter. Apparently, this second union grievance, 4G 18C-4G-C 21250071, challenged the Agency’s denying Complainant’s leave request associated with her Office of Workers Compensation Programs (OWCP) claim. 2 The record indicates that the Letter of Warning was dated April 22, 2021. 3 2022001438 On February 16, 2022, the Agency responded to Complainant’s appeal, and noted that Complainant had not filed a new hearing request following the resolution of the LOW grievance as instructed by the AJ’s December 13, 2021 Order. The Agency also provided a copy of the pre-arbitration settlement agreement which had resolved Complainant’s LOW grievance, 4G 18C-4G-D 21234560. On February 18, 2022, Complainant filed a factual clarification in response to the Agency where Complainant noted that her OWCP leave grievance, 4G 18C-4G-C 21250071, still remained unresolved. On February 24, 2022, the Agency essentially agreed with Complainant’s factual clarification. The Agency in relevant part stated that only the LOW grievance (4G 18C-4G-D 21234560) had been completely settled on January 19, 2022, when the Agency removed the LOW from Complainant’s record and rescinded it. On March 15, 2022, Complainant filed a new request for a hearing addressed to EEOC’s Memphis District Office. The hearing request referenced Agency case number, 4G-370-0046- 21, and EEOC hearing number, 490-2022-00014X which concerned Complainant’s EEO claim about the LOW. Here, the record supports that Complainant has elected to reinstate the adjudication of her LOW claim before the EEOC AJ. Consequently, this matter is currently pending adjudication before an EEOC AJ and the present appeal is premature. Therefore, Complainant’s appeal in this matter is DISMISSED.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 3 To the extent that Complainant wishes avail herself of the EEO process to contest other matters, such as the Agency’s denial of her request for OWCP-related leave, she must raise other issues with an Agency EEO Counselor. 4 2022001438 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. 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 5 2022001438 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