U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Lavern B.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Great Lakes Area), Agency. Appeal No. 0120171308 Agency No. 6X000000217 DECISION Complainant filed a timely appeal with this Commission from the Agency's decision dated February 3, 2017, dismissing his 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Tractor Trailer Driver at the Agency's Carol Stream Processing and Distribution facility in Carol Stream, Illinois. On November 8, 2016, Complainant made EEO contact regarding discrimination beginning August 7, 2016 and ongoing. On December 30, 2016, Complainant filed a formal complaint alleging that the Agency discriminated against him on the bases of race (African-American), sex (male), color (Brown), and reprisal for prior protected EEO activity under Title VII, when: 1. on June 30, 2016, Complainant was notified by a fellow employee that she was not allowed to have Complainant serve as her representative for an EEO complaint the co-worker had filed; and 2. on August 7, 2016 and ongoing, the Agency refused to respond to, or accept and process, Complainant's own EEO claims of discrimination and retaliated against him when it did not allow Complainant to participate in any REDRESS mediation as a representative or as a counselee. On February 3, 2017, the Agency issued a final decision dismissing the complaint for failure to state a claim pursuant to 29 C.F.R. § 1614.107(a)(1). In doing so, the Agency defined the complaint as solely raising the claim that Complainant was not allowed to act as a representative for a co-worker's EEO complaint on June 30, 2016. The Agency's dismissal decision reasoned that Complainant did not have standing to file a claim regarding the Agency's action in precluding him from representing his co-worker. The Agency did not reach Complainant's claim that he was being denied his rights as a complainant with regard to his own EEO claims. This appeal followed. ANALYSIS AND FINDINGS We agree with the Agency's conclusion that Complainant does not have standing to raise a claim concerning his preclusion from representing another employee. See Lambert v. Social Security Administration, EEOC Request No. 05970586 (February 14, 1997); Ramadge v. United States Postal Service, EEOC Request No. 05A10053 (March 23, 2001). However, in this case, Complainant is also challenging the Agency's actions of barring him from participating in the EEO process as complainant on his own behalf. Complainant claimed that the Agency refused to provide him with EEO counseling and banned him from all participation in the REDRESS process in his capacity as a complainant. The Agency acknowledged that "a managerial decision was made that [Complainant] is no longer allowed to participate in REDRESS mediation as a complainant...based on his actions during a previous mediation [in 2013]." The record includes an e-mail excerpt that acknowledges that, "as an update, the Law Department advises that no one should respond to [Complainant's] correspondence as it doesn't have any validity." Complainant claims race, sex, and retaliation when, starting in August 2016 and ongoing, he was banned from participating in REDRESS based on stereotypical negative perceptions of him as threatening because he is a larger darker-complexioned African-American male with a deep voice and because he had filed prior EEO complaints against his supervisors. We find, therefore, that the Agency erred in dismissing Complainant's claim that the Agency was denying him the right to fully participate, as a complainant on his own behalf, in the EEO complaint process. This matter needs to be remanded to the Agency for investigation and further processing. CONCLUSION Accordingly, we REVERSE the Agency's final decision dismissing Complainant's claim of discrimination and/or retaliation when the Agency denied his right to full access to the EEO complaint process for claims brought by Complainant on his own behalf. This claim is remanded to the Agency for further processing in accordance with this decision and the Order below. ORDER (E1016) The Agency is ordered to process the remanded claim 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. A copy of the Agency's letter of acknowledgment to Complainant and a copy of the notice that transmits the investigative file and notice of rights must be sent to the Compliance Officer as referenced below. IMPLEMENTATION OF THE COMMISSION'S DECISION (K0617) Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. 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. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) The Commission may, in its discretion, reconsider the decision in this case if the Complainant or the Agency submits a written request containing arguments or evidence which tends 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 to reconsider, with supporting statement or brief, must be filed with the Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in 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). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). The request or opposition must also include proof of service on the other party. Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your 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. 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 July 20, 2017 __________________ Date 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 0120171308 5 0120171308