[Redacted], Valentine S., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Headquarters), Agency.

Equal Employment Opportunity Commission

Dec 22, 2022

Appeal No. 2022004565 (E.E.O.C. Dec. 22, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Valentine S.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Headquarters), Agency. Appeal No. 2022004565 Agency No. 4B-230-0222-22 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated August 8, 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 as a City Carrier at the Agency’s Engleside Branch Post Office in Alexandria, Virginia. On July 11, 2022, Complainant filed a formal EEO complaint. According to the Agency, Complainant alleged that the Agency discriminated against him when: 1. On April 25, 2022, management yelled at Complainant and questioned the validity of Complainant’s Family & Medical Leave Act (FMLA) leave; and 2. On June 6, 2022, management yelled at Complainant when he went to make a copy. 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. 2022004565 2 On August 8, 2022, the Agency dismissed the formal complaint for failure to state a claim under 29 C.F.R. § 1614.107(a)(1), finding that Complainant raised no EEO regulatory basis for the alleged discrimination and Complainant’s written narrative failed to infer a basis for discrimination. The instant appeal followed. ANALYSIS AND FINDINGS The regulations set forth at 29 C.F.R. §§ 1614.103, 1614.106 require an Agency to accept a complaint from an aggrieved employee or applicant who believes that he has been discriminated against because of race, color, religion, sex, national origin, age, disabling condition, or reprisal for prior EEO activities. See also, Odoski v. Dep’t of Energy, EEOC Appeal No. 0119901496 (Apr. 16, 1990). An agency shall dismiss a complaint that fails to state a claim. 29 C.F.R. § 1614.107(a)(1). To successfully state a claim, a complaint must identify an alleged basis of discrimination (i.e. race, sex, age, national origin, color, religion, disability, and reprisal for prior EEO activity) within the purview of EEO law and regulations. If a complaint fails to clearly identify a covered basis within our jurisdictional purview, then it must be dismissed. See Emmanuel L. v. Dep’t of the Air Force, EEOC Appeal No. 0120171680 (Jul. 11, 2017). A copy of the formal complaint (Form 2565), signed by Complainant on July 10, 2022, includes instructions that the complaint form was to be used by employees and applicants who thought they had been discriminated against due to race, color, religion, sex, national origin, age, genetic information, disability, or reprisal. Complainant did not check, as bases of alleged discrimination, any of these bases in Box 14. Instead, Complainant added an additional category, “workroom discrimination” and checked this box as his basis of discrimination. However, “workroom discrimination” is not a covered basis which would render the matters raised in Complainant’s complaint as a justifiable claim. Nevertheless, we note that the formal complaint also includes a handwritten annotation in box 16 which states “please see attached in the folder.” Our review of Complainant’s supplemental statement sent along with his formal complaint also fails to identify a covered basis for Complainant’s alleged discrimination. The supplemental statement generally asserts that management treated Complainant differently from other employees when management yelled at him and questioned his use for FMLA leave, but Complainant does not allege a covered basis for management’s alleged actions. However, on appeal, Complainant asserts that the EEO Counselor failed to include reprisal for prior protected EEO activity as the basis of his formal complaint.2 Complainant provides another Form 2565 electronically signed by him on May 2, 2022, that has reprisal checked as his raised basis for discrimination. This Form 2565 also identifies the same claims and allegations at issue. However, this Form 2565 is only electronically signed by Complainant. 2 Complainant explained, on appeal, that he had previously participated as a witness in a confidential case which resulted in negative result for his Station Manager who Complainant identifies as a responsible management official in the instant complaint. 2022004565 3 Complainant further explains that he notified the EEO Counselor, during a June 2022 phone call, that he was discriminated and retaliated against, but that the EEO Counselor failed to check the reprisal box, a covered basis, on the EEO Counselor’s report (Form 2570) which is dated July 19, 2022. We note that on appeal, the Agency does not refute Complainant’s contention that he had previously raised reprisal as a basis during the pre-complaint process. Given the confusion in the record, we find that remanding these claims to the Agency in accordance with our Order below is appropriate. CONCLUSION We REVERSE the Agency’s final decision dismissing the formal complaint on the procedural grounds discussed above. We REMAND this matter to the Agency for further processing and clarification of all relevant basis raised in accordance with the ORDER below. ORDER (E0618) The Agency is ordered to process the remanded claims 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. 2022004565 4 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. 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 2022004565 5 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 (R0610) This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. 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 filed your appeal with the Commission. 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. 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. 2022004565 6 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 22, 2022 Date