0520140273
10-02-2014
Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Eastern Area), Agency.
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.
Request No. 0520140273
Appeal No. 0120140495
Agency No. 4C-370-0145-13
DECISION TO RECONSIDER
Complainant timely requested reconsideration of the decision in Complainant v. U.S. Postal Service, EEOC Appeal No. 0120140495 (March 21, 2014). EEOC Regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision where the requesting party demonstrates 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.
See 29 C.F.R. � 1614.405(c). For the following reasons, the Commission reopens the appellate decision on its own motion, VACATES the decision in EEOC Appeal No. 0120140495 dismissing Complainant's appeal, and AFFIRMS the Agency's final decision dismissing Complainant's complaint.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Mail Processing Clerk at the Agency's Memphis Processing and Distribution Center (P&DC) in Tennessee.
On July 1, 2013, Complainant contacted an EEO Counselor. On September 18, 2013, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the basis of race (African-American).
On October 15, 2013, the Agency issued a final decision dismissing Complainant's complaint. The Agency framed Complainant's complaint as follows: (1) effective June 20, 2009, management involuntarily reassigned Complainant from the Memphis P&DC to the Nashville P&DC; and (2) Complainant did not receive due consideration for a May 29, 2013 class action grievance settlement agreement. Regarding claim 1, the Agency dismissed it pursuant to
29 C.F.R. � 1614.107(a)(2), for untimely EEO Counselor contact. Regarding claim 2, the Agency found that it was a collateral attack on the grievance process and dismissed it pursuant to 29 C.F.R. � 1614.107(a)(1), for failure to state a claim.
Thereafter, Complainant filed an appeal with the Commission. On appeal, Complainant argued that the Agency misframed her claims and erroneously dismissed her complaint. Specifically, Complainant asserted that the Agency's statement of the claims did not reflect her actual claims and that the alleged discrimination occurred on May 29, 2013.
The appellate decision dismissed Complainant's appeal pursuant to 29 C.F.R. � 1614.403(c), for the untimely filing of the appeal. Specifically, the appellate decision noted that Complainant received the Agency's final decision on October 13, 2013, but the appeal was postmarked on November 25, 2013, which was beyond the 30-day time limit.
ARGUMENTS ON RECONSIDERATION
In her request for reconsideration, Complainant argued that her appeal was timely filed. Specifically, Complainant asserted that she mailed her appeal on November 4, 2013 to the Commission address provided in the Agency's final decision (P.O. Box 19848), which she later discovered was an outdated address. Complainant submitted a certified mail receipt as proof of her November 4, 2013 mailing.
ANALYSIS AND FINDINGS
Upon review, we find that Complainant's request fails to meet the criteria of
29 C.F.R. � 1614.405(c), and it is the decision of the Commission to DENY the request. In so finding, we note that Complainant did not provide proof of her November 4, 2013 mailing when she filed her appeal. Nevertheless, upon our own motion and in the interest of fairness, we reopen the appellate decision and determine that the dismissal of Complainant's appeal was improper, given that the Agency provided her with the incorrect address to file her appeal. Complainant submitted evidence showing that on November 4, 2013, which was within the 30-day time limit for filing an appeal, she timely filed her appeal to the Commission's previous address of P.O. Box 19848, which was the address provided (in error) in the Agency's final decision. Accordingly, we VACATE the appellate decision dismissing Complainant's appeal. We will now address the Agency's procedural dismissal of Complainant's complaint.
A fair reading of Complainant's complaint and related EEO counseling materials - the EEO Counselor's Report and the Information for Pre-Complaint Counseling forms postmarked on July 10, 2013 and August 22, 20131 - shows that Complainant is alleging that the Agency discriminated against her on the basis of race (African-American) when:
A. In 2009, it erroneously excessed her to the Nashville P&DC;
B. From 2009 to December 15, 2012,2 when she was at the Nashville P&DC, it did not provide her with travel time on the clock, transportation to and from work, or opportunities to take positions in close proximity to her home.3
C. On May 29, 2013, it signed a class action grievance settlement agreement that did not give her due consideration and did not make her whole.4
Claims A and B
EEOC Regulation 29 C.F.R. � 1614.107(a)(2) provides that the agency shall dismiss a complaint that fails to comply with the applicable time limits contained in � 1614.105, unless the agency extends the time limits in accordance with � 1614.604(c). EEOC Regulation
29 C.F.R. � 1614.105(a)(1) requires that complaints of discrimination be brought to the attention of the EEO Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five (45) days of the effective date of the action.
EEOC Regulation 29 C.F.R. � 1614.105(a)(2) provides that the agency or the Commission shall extend the time limits when the individual shows that she was not notified of the time limits and was not otherwise aware of them, that she did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence she was prevented by circumstances beyond his control from contacting the EEO Counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission.
Upon review, we find that claims A and B should be dismissed, pursuant to
29 C.F.R. � 1614.107(a)(2), for untimely EEO Counselor contact. Specifically, the record reflects that the events alleged to be discriminatory - Complainant's excess to the Nashville P&DC and the benefits she did not receive (travel time on the clock, transportation to and from work, or opportunities to take positions in close proximity to her home) - occurred from 2009 to 2012, but that Complainant did not contact an EEO Counselor until July 1, 2013, which is beyond the 45-day limitation period. Moreover, Complainant provided no reason for the Commission to extend the time limit for contacting an EEO Counselor.
Claim C
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).
Upon review, we find that claim C constitutes a collateral attack on the grievance process and should be dismissed, pursuant to 29 C.F.R. � 1614.107(a)(1), for failure to state a claim. Complainant alleged that the Agency, on May 29, 2013, signed a class action grievance settlement agreement that did not give her due consideration and did not make her whole. The proper forum for Complainant to have expressed her dissatisfaction with the negotiation of the class action grievance settlement agreement during the grievance process was within that forum itself. It is inappropriate to now attempt to use the EEO process to collaterally attack actions which occurred during the grievance process. The Commission has also previously held that a complainant cannot use the EEO process to collateral attack actions involving the terms of a grievance settlement agreement. See Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120141186 (May 30, 2014) (claim challenging a monetary award given pursuant to a grievance settlement agreement constitutes a collateral attack); Carrasco v. U.S. Postal Serv., EEOC Appeal No. 0120121185 (May 22, 2012) (claim challenging a no-back pay clause of a grievance settlement agreement constitutes a collateral attack).
CONCLUSION
After a review of Complainant's request for reconsideration, the previous decision, and the entire record, the Commission finds that Complainant's request fails to meet the criteria of
29 C.F.R. � 1614.405(c), and it is the decision of the Commission to DENY the request. The Commission, however, has decided to reconsider the previous decision on its own motion. The Commission VACATES the decision in EEOC Appeal No. 0120140495 dismissing Complainant's appeal, and AFFIRMS the Agency's final decision dismissing Complainant's complaint. There is no further right of administrative appeal from that portion of our decision pertaining to the timeliness of Complainant's appeal to the Commission.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (revised)
With regard to that portion of our decision pertaining to the Agency's dismissal of Complainant's complaint, i.e., the dismissals of claims A, B and C, 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 9-18 (November 9, 1999). 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 (Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
__10/2/14________________
Date
1 The forms postmarked on July 10, 2013 and August 22, 2013 contain similar allegations. Complainant submitted the August 22, 2013 form as a class agent. The EEO Counselor's Report noted that Complainant was informed that the August 22, 2013 claim would be added as additional information to the existing claim.
2 In the Information for Pre-Complaint Counseling form postmarked on July 10, 2013, Complainant sought mileage reimbursement from July 4, 2009 to December 15, 2012.
3 Complainant alleged that the Agency provided those benefits to the Caucasian employees it excessed from P&DCs in Jonesboro (Arkansas), Bowling Green (Kentucky), and Jackson (Tennessee).
4 In her formal complaint, Complainant sought reimbursement for expenses related to her home, wear and tear on her vehicle, mileage on her vehicle, and her relocation back to Memphis.
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0520140273
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0520140273