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

Equal Employment Opportunity Commission

Sep 27, 2022

Appeal No. 2022003839 (E.E.O.C. Sep. 27, 2022)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Verla G,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. Appeal No. 2022003839 Agency No. 1C-731-0158-21 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated February 28, 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND During the period at issue, Complainant worked as a Distribution Operations Supervisor, EAS- 17, at the Agency’s Post Office in De Soto, Texas. On January 28, 2022, Complainant, through counsel, filed a formal EEO complaint claiming that the Agency subjected her to discriminatory harassment based on disability, age, and in reprisal for prior protected EEO activity when: 1. on June 18, 2020, Complainant was not provided reasonable accommodation when her modified job was not honored which resulted in more harm to her medical condition and her not being able to report to work; 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. 2022003839 2 2. beginning on or about March 29, 2021, management officials did not complete their portion of the CA-7, which resulted in Complainant’s payments being denied for the dates covering November 21, 2020 through January 1, 2021; 3. in February 2021 and May 2021, management did not notify the Department of Labor (DOL) of the correct information from Complainant’s doctor, which resulted in Complainant not receiving surgery; 4. on September 17, 2021, Complainant was required to sign a CA-2 completed by management; 5. on or about September 15, 2021, and September 30, 2021, management controverted Complainant’s CA-2 claim; and 6. on an unspecified date, Complainant was told to conduct attendance reviews on two areas when she only supervised one of these areas. On February 28, 2022, the Agency dismissed the formal complaint on two grounds. First, the Agency dismissed the formal complaint pursuant to 29 C.F.R. § 1614.107(a)(2), finding that the formal complaint was untimely filed. The Agency reasoned that Complainant received, by mail, the Notice of Right to File a Formal Complaint (Notice) on December 17, 2021. The Agency found, however, that Complainant did not file her formal complaint, via mail, until January 28, 2022, which was beyond the 15-day filing period.2 Second, the Agency dismissed the formal complaint pursuant to 29 C.F.R. § 1614.107(a)(1) for failure to state a claim. Specifically, the Agency found that the formal complaint constituted a collateral attack on the Department of Labor’s Office of Workers Compensation Programs (OWCP) process. The Agency determined that this matter was outside of the Commission's jurisdiction and should have been raised with the Department of Labor. The instant appeal followed. 2 The record indicates that Complainant’s Counsel incorrectly mailed her formal complaint, postmarked January 14, 2022, to the Commission instead of the NEEOISO as directed on the Notice. The Commission received the formal complaint on January 19, 2022, forwarded the complaint to NEEOISO, and the formal complaint was not received by NEEOISO until January 28, 2022. 2022003839 3 ANALYSIS AND FINDINGS Untimely Formal Complaint The regulation at 29 C.F.R. § 1614.107(a)(2) states, in pertinent part, that an Agency shall dismiss a complaint which fails to comply with the applicable time limits contained in 29 C.F.R. § 1614.106, which, in turn, requires the filing of a formal complaint within fifteen (15) days of receiving notice of the right to do so. Mail delivery confirmation documents provided in the record indicate that the Notice was delivered to Complainant’s home address on December 17, 2021, and neither Complainant, nor her legal counsel dispute that the Notice was received on December 17, 2021. The Notice stated in pertinent part, “you have 15 days from the date of receipt of the letter to file a timely formal complaint.” The Notice further directed Complainant to file her notice with the NEEOISO. Consequently, Complainant had fifteen days from December 17, 2021, or until January 3, 2022,3 to timely file the formal complaint. However, the record indicates that Complainant’s Counsel initially mailed the formal complaint on January 14, 2022 to the Commission, which was received on January 19, 2022, and was eventually received by the NEEOISO by January 28, 2022. Consequently, Complainant’s formal complaint was not timely filed. We note that on appeal, Complainant’s Counsel does not dispute that the formal complaint was untimely filed. Rather, Counsel explains on appeal that she untimely filed the formal complaint due to health issues. When a complainant claims that a physical condition prevents her from meeting a particular filing deadline, we have held that in order to justify an untimely filing, Complainant must be so incapacitated by the condition as to render her physically unable to make a timely filing. See Zelmer v. U.S. Postal Serv., EEOC Request No. 05890164 (Mar. 8, 1989). Here, Counsel explains that she on December 30, 2021, she felt sick and went to the emergency department. Counsel further explains that she notified the Agency’s legal counsel via phone on January 5, 2022 that she had been diagnosed with COVID-19 and had been admitted to the hospital and followed up with an email on January 7, 2022. Ultimately, Counsel explained that she was not discharged from the hospital until January 12, 2022, and thereafter, she mailed the formal complaint on January 14, 2022, albeit incorrectly to the Commission instead of the NEEOISO. We construe the January 14, 2022 postmark date as the date Counsel filed the formal complaint. In support of her assertions, Counsel submits medical record indicating that she arrived at the emergency department after having taken a home test indicating that she was positive for COVID-19. 3 Because fifteen days from December 17, 2021, fell on Saturday, January 1, 2022, the filing deadline extended to the next business day, Monday, January 3, 2022. 2022003839 4 Counsel’s medical records also indicate that she was not discharged from the hospital until January 12, 2022. Consequently, the medical records Counsel submits reflect that she was incapacitated during the applicable fifteen-day period which prevented her from timely filing the instant formal complaint and reasonably filed the formal complaint two days after she was released from the hospital. Therefore, we find that, given the specific circumstances of this case, Counsel has presented adequate justification for extending the limitation period beyond the fifteen days. For these reasons, we reverse the Agency’s dismissal of the formal complaint for untimely filing. Collateral Attack and Claim 6 The Commission has held that an employee cannot use the EEO complaint process to lodge a collateral attack on another 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). A claim that can be characterized as a collateral attack, by definition, involves a challenge to another forum's proceeding, such as the grievance process, the workers' compensation process, an internal agency investigation, or state or federal litigation. See Fisher v. Dep't of Defense, EEOC Request No. 05931059 (July 15, 1994). The essence of claims 2 through 5 in the formal complaint concern the Agency’s alleged failure to complete relevant selections on her CA-7, provide her doctor’s correct information to the Department of Labor, and the Agency’s alleged challenging of her CA-7 claim. The proper forum for Complainant to have raised her challenges to actions which occurred during the OWCP process is within that process itself because any remedial relief available to Complainant would be through the OWCP. There is no remedial relief available to Complainant on this matter through the EEO complaint process. Therefore, the Agency properly dismissed claim 2 through 5 pursuant to 29 C.F.R. § 1614.107(a)(1), for failure to state a claim due to lodging a collateral attack on the proceedings of the OWCP process. However, while the modified job assignment Complainant was addressing may have been obtained due to her workers’ compensation claim, Complainant is also alleging a violation of the Agency’s duty to reasonably accommodation her medical condition under the Rehabilitation Act. The Agency’s legal duties under the workers’ compensation program and the Rehabilitation Act may involve some overlap. However, by alleging a failure to provide reasonable accommodation under the Rehabilitation Act, Complainant has stated a viable claim under the EEO complaint process. In addition, claim 6 appears to be unrelated to Complainant’s concerns regarding the OWCP process and addresses a matter which alleges a personal loss or harm to a term, condition or privilege of employment. Diaz v. Dep’t of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994). Therefore, we remand these two claims to the Agency in accordance with our order below. 2022003839 5 CONCLUSION Accordingly, we REVERSE the Agency’s dismissal of the formal complaint on the grounds of untimely filing. We AFFIRM the Agency’s dismissal of claims 2 through 5 for failure to state a claim (collateral attack). We REVERSE the Agency’s dismissal of claims 1 and 6 and remand them to the Agency for further processing in accordance with the ORDER below ORDER (E0618) The Agency is ordered to process the remanded claims (claims 1 and 6) 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. 2022003839 6 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 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. 2022003839 7 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 (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 September 27, 2022 Date