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

Equal Employment Opportunity Commission

Mar 20, 2023

Appeal No. 2023000872 (E.E.O.C. Mar. 20, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Wes S,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. Appeal No. 2023000872 Agency No. 4G-350-0354-22 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated October 24, 2022, dismissing a formal complaint of 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 Laborer Custodial at the Agency’s Post Office in Southaven, Mississippi. On September 28, 2022, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (African American), color (Black), sex (male), disability, age, and in reprisal for prior EEO cases. In its October 24, 2022 final decision, the Agency determined that the formal complaint was comprised of the following 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. 2023000872 2 On June 21, 2022, [Complainant was] issued a letter stating [he] was no longer on Enforced Leave Status and to return to duty. [Complainant was] also required to provide updated medical documentation. The Agency dismissed the formal complaint for failure to state a claim. The Agency reasoned that Complainant was not subjected to an adverse action with respect to a term, condition, or privilege of employment. The Agency further found that the alleged incident was not sufficiently severe or pervasive to set forth an actionable claim of discriminatory harassment. The instant appeal followed. Complainant references the Commission’s Enforcement Guidance on Reasonable Accommodation and Undue Hardship and argues the Agency’s request for medical documentation violates this guidance.2 Complainant asserts that an MSPB decision reversed the Agency’s placement of him on enforced leave and required the Agency to return him to work and did not require additional medical documentation. ANALYSIS AND FINDINGS The regulation 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. 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. Dep’t of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994). The Agency properly dismissed the formal complaint for failure to state a claim. The crux of Complainant’s claim is that he is seeking to enforce compliance with an Order from the Merit Systems Protection Board (MSPB). Complainant, in his formal complaint and on appeal, references an MSPB case (MSPB Docket No. AT-0752-20-0275-I-3) which he brought regarding the Agency denying his request for a reasonable accommodation and placing him on enforced leave.3 Specifically, in his formal complaint, Complainant states “the alleged request for updated medical documentation is…for the period of enforced leave…that was resolved by the MSPB decision…” In addition, on appeal, Complainant states that the MSPB reversed his placement on enforced leave and required the Agency to return him to work. 2 We note, as set forth herein, that Complainant’s 2019 reasonable accommodation request is not currently before us and was decided by the MSPB. 3 We note that Complainant’s 2019 request for a reasonable accommodation and the Agency’s subsequent placement of him on enforced leave was decided by MSPB Docket No. AT-0752-20- 0275-I-3 (March 16, 2022) and is not currently before us. The MSPB did not sustain the Agency’s action of placing Complainant on enforced leave and ordered the Agency, among other things, to cancel this action and retroactively return him to duty. Id. 2023000872 3 Complainant further asserts that the Agency’s request for medical documentation is “moot” per the MSPB’s decision. The EEO complaint process is not available to enforce a decision from another adjudicatory forum. To the extent that Complainant is seeking the enforcement of an MSPB order, he should do so in the MSPB forum. We note that Complainant raised the matter of a prior return to duty notice dated March 23, 2022, in a prior EEO case, which the Agency dismissed for failure to state a claim which was affirmed on appeal. See Wes S. v. U.S. Postal Serv., EEOC Appeal No. 2022004522 (Dec. 13, 2022). Moreover, we find that the alleged incident is not sufficiently severe or pervasive to set forth an actionable claim of harassment. Finally, the alleged Agency action was not of a type reasonably likely to deter Complainant or others from engaging in prior protected activity. Lindsey v. USPS, EEOC Request No. 05980410 (November 4, 1999) (citing EEOC Compliance Manual, No. 915.003 (May 20, 1998). CONCLUSION We AFFIRM the Agency’s final decision dismissing the formal complaint for the reasons discussed above. 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 2023000872 4 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 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. 2023000872 5 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 March 20, 2023 Date