0120180026
12-20-2017
Darla W.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Great Lakes Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Darla W.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.
Appeal No. 0120180026
Agency No. 1J53105417
DECISION
Complainant timely appealed with the Equal Employment Opportunity Commission ("EEOC" or "Commission") from the Agency's August 24, 2017 decision 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 an MEO Driver at the Agency's processing and distribution center ("P&DC") in Palatine, Illinois.
On August 9, 2017, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the basis of reprisal for prior protected EEO activity when:2
1. On March 15, 2017, she was taken off a detail assignment;
2. On an unspecified date, she was interviewed by Management in reference to a statement she made about an incident involving a co-worker; and
3. On March 15, 2017, she was denied a union representative.
On an unspecified date, Complainant allegedly witnessed the Supervisor, Distribution Operations "violently" sexually assault her coworker ("C1"). Complainant recalls shouting "[d]on't touch him" and "[k]eep your hands off him" to no avail. Afterward, C1 initiated an EEO complaint alleging that the incident constituted harassment and discrimination on the basis of sex, in violation of Title VII (Agency No. 1J531004617). Complainant also engaged in protected EEO activity by providing a witness statement to the EEO Counselor on C1's behalf.
Due to the nature of C1's allegation, the Agency initiated an Initial Management Inquiry Process ("IMIP"), which was separate from his EEO complaint. The IMIP was conducted by the Postmaster from another facility ("P1"). On or around April 26, 2017, P1 asked to speak with Complainant, as she witnessed the alleged assault. Complainant did not recognize P1, and requested union representation since the inquiry was related to the alleged assault, and she was concerned about disciplinary action. Complainant's supervisor denied Complainant's request and allegedly threatened disciplinary action if she did not cooperate with P1's IMIP.
On or around the same date, Complainant's detail assignment in security, which had been working on Saturdays for approximately two years was rescinded and she was replaced by another employee. The Agency explained that it was acting in accordance with an arbitration agreement. However, Complainant argues that the Agency removed her from security in order to prevent her from coming to the assistance of C1, who she alleges was locked out of the facility multiple times as retaliation for his EEO Complaint. Believing she was subject to retaliation as well, Complainant initiated the instant complaint
The Agency dismissed Complainant's complaint for failure to state a claim, in accordance with 29 C.F.R. � 1614.107(a)(1).
ANALYSIS AND FINDINGS
Under 29 C.F.R. � 1614.107(a)(1) 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. See Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994).
The Commission has stated that adverse actions need not qualify as "ultimate employment actions" or materially affect the terms and conditions of employment to constitute retaliation. Lindsey v. United States Postal Serv., EEOC Request No. 05980410 (Nov. 4, 1999) Instead, claims based on statutory retaliation clauses are reviewed "with a broad view of coverage. Under Commission policy, a complainant is protected from any retaliatory discrimination that is reasonably likely to deter... complainant or others from engaging in protected activity." Maclin v. United States Postal Serv., EEOC Appeal No. 0120070788 (Mar. 29, 2007).
If complainant cannot establish that he or she is aggrieved, the agency shall dismiss a complaint for failure to state a claim. 29 C.F.R. � 1614.107(a)(1).
Claim 1 - Removal from Detail Assignment
With regard to Claim 1, we find Complainant met her burden to establish that she is an "aggrieved employee," particularly where, on appeal, she reported that she had been working the Saturday Security detail for approximately 2 years when the Agency rescinded it, apparently without notice. A detail assignment is considered a privilege of employment, and removal from a detail necessarily entails a change in the conditions of employment, such as job responsibilities.
We decline to examine the issues discussed in the record regarding the Agency's rationale for rescinding Complainant's detail assignment because they relate to the merits of the case. The Commission has long held that "[an] Agency's assertion regarding the reason for the changes ... goes to the merits of the formal complaint, and is irrelevant to the procedural issue of whether Complainant stated a justiciable claim." See Ray v. United States Postal Serv., EEOC Appeal No. 0120083541 (Jul. 26, 2012) citing Osborne v. Dep't Treasury, EEOC Request No. 05960111 (Jul. 19, 1996).
On appeal, Complainant asserts that a temporal connection exists between the alleged discriminatory action and her protected activity because her detail assignment was rescinded on April 26, 2017, on or around the same day she provided the EEO witness statement. This date is consistent with Complainant's allegations in her pre-complaint documentation, and the Agency has not responded with evidence in support of the stated date of March 15, 2017. Viewing the record in a light most favorable to Complainant, and given our broad interpretation of reprisal allegations, we find Claim 1 states a claim.
Claims 2 and 3 - Investigative Interview and Denial of Union Representation
Under 29 C.F.R. � 1614.107(a)(1), the EEO process cannot be used to lodge a collateral attack against another proceeding. "A claim that can be characterized as a collateral attack, by definition, involves a challenge to another forum's proceeding, such as the grievance process, the unemployment compensation process, or the workers' compensation process." See Lingad v. United States Postal Serv., EEOC Request No. 05930106 (June 25, 1993); Kleinman v. United States Postal Serv., EEOC Request No. 05940585 (Sept. 22, 1994); Wills v. Dep't of Def., EEOC Request No. 05970596 (Jul. 30, 1998). The Commission has also applied this rule to claims about internal affairs investigations as well. See, Heard v. Dep't of Justice, EEOC Appeal No. 0120092680 (Aug. 27, 2009); Complainant v. Dep't of Justice, EEOC Appeal no. 0120113279 (Mar. 20, 2013) (finding a claim about conduct related to an investigation by the Agency's Internal Affairs Division, including the methodology obtaining evidence and interviewing witnesses, was outside the Commission's jurisdiction).
Claim 2 challenges the propriety of the IMIP, and on appeal, Complainant cites alleged violations of the Collective Bargaining Agreement ("CBA") and internal Agency policies. Complainant argues, among other things, that her allegations do not constitute a collateral attack because she is not "affirmatively challenging a determination by another adjudicatory body," comparing her case with our decision in Complainant v. Dep't of Justice, EEOC Appeal No. 0120122277 (Sept. 20, 2012). There, we determined the complainant's allegation that her supervisor singled her out to be the subject of multiple internal affairs ("IA") investigations was not a collateral attack on IA because it did not challenge the investigation itself or its outcome. Here, however, Complainant identified herself as a witness in support of her coworker's complaint that was the subject of the IMIP, and now claims unlawful retaliation when she was interviewed as part of the IMIP. Under these circumstances, Complainant has failed to state a viable claim of and the Agency did not err in dismissing this matter as a separate claim. Moreover, to the extent that Complainant is alleging violations of the CBA, those challenges are not properly adjudicated in the EEO complaint process, but instead should be raised in the negotiated grievance process.
Claim 3 appears to assert a violation of Complainant's "Weingarten" rights, as she requested Union representation during a meeting that allegedly had the potential to result in disciplinary action. See generally NLRB v. Weingarten, Inc., 420 U.S. 251 (1975). We have long held that claim involving an issue relating to union representation constitutes a collateral attack on the grievance process. See Spiwak v. United States Postal Serv., EEOC Appeal No. 01991180 (Jan. 26, 2001); Shibel v. Dep't of the Navy, EEOC Appeal No. 01987064 (Aug. 12, 1999). We have maintained this precedent even when applying the "broad view of coverage" afforded reprisal claims. See Complainant v. United States Postal Serv., EEOC Appeal No. 0120142489 (Oct. 23, 2014). The proper forum to raise a claim regarding a violation of Weingarten Rights is through the grievance process under the CBA or before the Federal Labor Relations Authority. See Simensen v. United States Postal Serv., EEOC Appeal No. 0120021068 (Feb. 26, 2002).
CONCLUSION
Accordingly, we AFFIRM the Agency's dismissal of Claims 2 and 3; and we REVERSE the Agency's dismissal of Claim 1.
Claim 1 is hereby REMANDED for further processing in accordance with the ORDER below.
ORDER (E1016)
The Agency is ordered to process the remanded claims 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 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. 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 (T0610)
This decision affirms the Agency's final decision/action in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. 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 your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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
December 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 During EEO counseling, Complainant also alleged that "on April 26, 2017, Management attempted to issue discipline for attendance dating back to November 8, 2016;" however, the Agency did not address this allegation because it was not referenced in Complainant's Formal Complaint (consisting of a five page "Verified Personal Affidavit"). On appeal, Complainant does not dispute the Agency's decision, so we decline to address it further.
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0120180026
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