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

Equal Employment Opportunity Commission

Sep 20, 2022

Appeal No. 2022003462 (E.E.O.C. Sep. 20, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Susan M.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. Appeal No. 2022003462 Agency No. 4G-752-0134-22 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated May 2, 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., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND During the period at issue, Complainant worked as a Sales, Services, Distribution Associate at the Agency’s McKinney Post Office in McKinney, Texas. On April 16, 2022, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination based on disability and in reprisal for prior EEO activity when: 1. Since June 12, 2021, Complainant was being told she cannot work overtime. 2. On November 22, 2021, she alleged management delayed giving her a Form CA-16 [authorization to medical provider to provide treatment to employee with a work-related injury or illness as part of a workers’ compensation claim]. 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. 2022003462 2 3. On December 2, 2021, Complainant was interviewed by the Postal Inspection Service because management controverted her on-on-the-job-injury claim and on or about December 6, 2021, she became aware that management controverted her on-the-job injury claim with the Department of Labor (DOL), Office of Workers’ Compensation Programs (OWCP). 4. On December 3, 2021, she was given an investigative interview. 5. On unspecified dates, Complainant alleged she was the only one asked to provide a list of her OWCP doctor appointments, questioned if she had reached her walking/standing limit, and called in the office for various issues. On May 2, 2022, the Agency dismissed claims 1 and 5 pursuant to 29 C.F.R. § 1614.107(a)(2) for raising a matter which was not been brought to the attention of an EEO counselor and was not like or related to a matter which has been brought to the attention of a Counselor. The Agency noted that the EEO Counselor reported Complainant only raised discrimination when on December 2, 2021, she was subjected to harassment by management when Postal Inspectors were called on her, and on December 3, 2021, she was given an Investigative Interview. The Agency dismissed claims 1 and 5 pursuant to 29 C.F.R. § 1614.107(a)(2) for not having been the subject of EEO counseling, and not being like or related to matters for which Complainant underwent EEO counseling. The Agency also dismissed claims 2 - 5 for failure to state a claim. The Agency gave special focus to claims 2, 3, and 5 as being collateral attacks on the OWCP process. In a separate analysis, including claim 4, the Agency then determined generally that claims 2, 4, and 5 did not constitute justiciable claims. The instant appeal followed. ANALYSIS AND FINDINGS Claim 1 The regulation at 29 C.F.R. § 1614.107(a)(2) states, in pertinent part, that an agency shall dismiss a complaint which raises a matter that has not been brought to the attention of a Counselor and it not like or related to a matter that has been brought to the attention of an Counselor. A later claim or complaint is “like or related” to the original claim(s) if the later claim or complaint adds to or clarifies the original complaint or could have reasonably been expected to grow out of the original complaint during the investigation. See Scher v. U.S. Postal Serv., EEOC Request No. 05940702 (May 30, 1995); Calhoun v. U.S. Postal Serv., EEOC Request No. 05891068 (Mar. 8, 1990). In her formal complaint, Complainant failed to raise a matter “like or related” to that which she raised in EEO counseling. 2022003462 3 The Agency noted that the EEO Counselor reported Complainant only raised discrimination when on December 2, 2021, she was subjected to harassment by management when Postal Inspectors were called on her, and on December 3, 2021, she was given an Investigative Interview. Accordingly, we affirm the Agency’s dismissal of claim 1 pursuant to 29 C.F.R. § 1614.107(a)(2) for raising a matter that has not been brought to the attention of an EEO Counselor. Failure to State a Claim: Claims 2 - 5 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'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. Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994). The regulation set forth 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. The Commission has held that an employee cannot use the EEO complaint process to lodge a collateral attack on another adjudicatory proceeding. See Wills v. Dep’t of Def., EEOC Request No. 05970596 (July 30, 1998); Kleinman v. U.S. Postal Serv., EEOC Request No. 05940585 (Sept. 22, 1994); Lingad v. U.S. Postal Serv., EEOC Request No. 05930106 (June 25, 1993). Here, claim 2 - 5 directly address Complainant’s workers’ compensation claim. The proper forum for Complainant to have raised her challenges to actions which involve the her OWCP claim is with the Department of Labor. It is inappropriate to attempt to use an EEO complaint to collaterally attack processing concerns and decisions made during the OWCP adjudicatory process, including the Agency’s decision to controvert her claim. Thus, we find the claims were properly dismissed, pursuant to 29 C.F.R. § 1614.107(a)(1), for failure to state a claim. CONCLUSION The Agency’s final decision dismissing Complainant’s formal complaint for the reasons stated herein is AFFIRMED. 2022003462 4 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). 2022003462 5 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 September 20, 2022 Date