0120162416
10-12-2016
Becky N.,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
Becky N.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Southern Area),
Agency.
Appeal No. 0120162416
Agency No. 4G-770-0177-16
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated June 14, 2016, 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 City Letter Carrier at the Agency's Beechnut Station in Houston, Texas.
On April 4, 2016, Complainant initiated EEO Counselor contact. Informal efforts to resolve her concerns were unsuccessful.
On May 13, 2016, Complainant filed the instant formal complaint. Complainant claimed that the Agency subjected her to discrimination on the bases of race, sex, disability, age, and in reprisal for prior EEO activity when:
1. her Office of Workers' Compensation Programs (OWCP) claim on November 13, 2014, was challenged by management;
2. in 2014, she did not receive full Continuation of Pay (COP) payment;
3. on unspecified dates, she was reprimanded for filing numerous claims;
4. on unspecified dates, she was told she would receive a Letter of Warning if she file a claim on her foot;
5. on unspecified dates, her claims could only be processed by the Station Manager;
6. on unspecified dates, her co-workers were told not to communicate with her;
7. on unspecified dates, she was not allowed to park her truck on the dock;
8. in February 2016, management delayed the processing of her Form CA-2 "Notice of Occupational Disease and Claim for Compensation;"
9. on February 9, 2016, she became upset after talking with the Health and Human Resources Specialist; and
10. on April 9, 2016, she was not paid 45 days of COP.
The record reflects that Complainant has not worked since December 24, 2014, and has been on the Periodic Rolls since this time.
In its June 14, 2016 final decision, the Agency dismissed claims 1 - 7 on the grounds of untimely EEO Counselor contact, pursuant to 29 C.F.R. � 1614.107(a)(2). The Agency determined that Complainant's initial EEO Counselor contact was on April 4, 2016, which it found to be beyond the 45-day limitation period.
The Agency dismissed claims 1, 2, 8 and 10 on the alternative grounds of failure to state a claim, pursuant to 29 C.F.R. � 1614.107(a)(1). Specifically, the Agency found that the matter raised therein was a collateral attack on Department of Labor's Office of Workers' Compensation Programs (OWCP) process concerning her COP payment. The Agency stated that Complainant should have raised her allegations through the OWCP, not in the EEO complaint process.
The Agency also dismissed claims 2 and 7 for stating the same claim that was raised in a prior EEO complaint, pursuant to 29 C.F.R. � 1614.107(a)(1). Specifically, the Agency found that claims 2 and 7 raise the same matter in Agency Case No. 4G-770-0051-15 and 4G-770-0112-14.
Furthermore, the Agency dismissed claims 3 - 6 and 9 for failure to state a claim, finding that Complainant was not aggrieved.
The instant appeal followed.
ANALYSIS AND FINDINGS
Untimely EEO Counselor contact (claims 1 - 7)
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of personnel action, within forty-five (45) days of the effective date of the action.
Here, the Agency properly dismissed claims 1 - 7 on the grounds of untimely EEO Counselor contact. The alleged discriminatory events occurred sometime between 2014 and 2015. However, Complainant did not initiate contact with an EEO Counselor until April 4, 2016, well beyond the 45-day limitation period. Complainant had, or should have had, a reasonable suspicion of discrimination regarding her claims more than 45 days prior to her initial contact with an EEO Counselor.
On appeal, Complainant did not present persuasive arguments or evidence warranting an extension of the time limit for initiating EEO Counselor contact. See 29 C.F.R. � 1614.604(c). Therefore, we find that the Agency's dismissal of claims 1 - 7 was proper.
Failure to state a claim/collateral attack (claims 8 and 10)
Claims 8 and 10 constitute a 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. Department of Defense, EEOC Request No. 05970596 (July 30, 1998); Kleinman v. USPS, EEOC Request No. 05940585 (September 22, 1994); Lingad v. USPS, EEOC Request No. 05930106 (June 24, 1993). The proper forum for Complainant to have raised her challenges to actions which occurred during the OWCP process is within that process itself. It is inappropriate to now attempt to use the EEO process to collaterally attack actions which occurred through the OWCP process. The Agency properly dismissed claims 8 and 10 for failure to state a claim.
Failure to state a claim (claim 9)
The regulation set forth 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. Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994).
Complainant has not alleged a personal loss or harm regarding a term, condition or privilege of her employment. We note there is no allegation that Complainant was disciplined or subjected to any adverse personnel action as a result of the alleged events. To the extent Complainant is claiming a discriminatory hostile work environment, we find that the events described, even if proven to be true and considered together, would not indicate that Complainant has been subjected to harassment that was sufficiently severe or pervasive to alter the conditions of her employment. See Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March 13, 1997). Finally, the alleged Agency actions were 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).
The Agency's final decision dismissing claims 1 - 7 on the grounds of untimely EEO Counselor contact and claims 8 - 10 for failure to state a claim is AFFIRMED.
Because we affirm the Agency's dismissal for the reasons stated herein, we will not address alternative dismissal grounds.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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. The requests 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 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
October 12, 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.
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