0120160823
03-18-2016
Becki P.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Becki P.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Southern Area),
Agency.
Appeal No. 0120160823
Agency No. 4G-330-0273-15
DECISION
On December 16, 2015, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated November 20, 2015, dismissing her 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 City Letter Carrier at the Agency's Boca Raton Post Office in Florida.
On October 14, 2015, Complainant filed a formal complaint, which the Agency defined as alleging she was discriminated against her based on her national origin (Finland - [with accent]) when:
1. On or about May 6, 2015, her manager provided her with the incorrect Office of Workers' Compensation Programs (OWCP) number, causing problems with her medical treatment, and
2. In May 2015, she became aware that she had not been paid continuation of pay (COP) benefits for a compensable injury sustained on May 5, 2015, and her COP was delayed for two months.2
The Agency dismissed the complaint for failure to timely file the complaint. It reasoned that Complainant's attorney received the notice of right to file the complaint on September 30, 2015, but Complainant did not file the complaint until October 22, 2015, beyond the 15 day calendar time limit. The Agency also dismissed the complaint for failure to state a claim because it constituted a collateral attack on the OWCP process, a separate forum.
On appeal, Complaint by and through her attorney, submits evidence that the complaint was filed on October 14, 2016, but was returned for insufficient postage. This is documented by an envelope containing two stamps - a postage meter stamp dated October 14, 2016, and a return to sender stamp for insufficient postage. Complainant's attorney writes that when he re-mailed the complaint to the Agency on October 22, 2016, he enclosed the original envelope.
In opposition to the appeal the Agency argues that it should not be penalized by the attorney paying insufficient postage, and that the FAD should be affirmed.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.107(a)(2) requires, in pertinent part, that an agency dismiss a complaint which fails to comply with the applicable time limits contained in 29 C.F.R. � 1614.106. This regulation requires the filing of a formal complaint within fifteen (15) days of receiving the notice of the right to do so.
Complainant's attorney received the notice of right to file the complaint on September 30, 2015, and timely mailed the complaint on October 14, 2015. When the complaint was returned for insufficient postage, the attorney promptly re-mailed the complaint on October 22, 2015. Given these circumstances, we deem the complaint to be timely filed.
The Commission agrees with the Agency that the complaint constitutes an impermissible collateral attack on the OWCP process. 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 Defense, EEOC Request No. 05970596 (July 30, 1998); Kleinman v. U.S. Postal Serv., EEOC Request No. 05940585 (Sept. 22, 1994). See Wilbert W. v. United States Postal Service, EEOC Appeal Nos. 0120150842 & 0120151811 (Dec. 18, 2015)(applying this doctrine to denial of COP).
The FAD is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)
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 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 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 or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. 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, P.O. Box 77960, Washington, DC 20013. 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 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 (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
March 18, 2016
__________________
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 On appeal, Complainant does not contest this definition.
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