0120180086
03-08-2018
Donita B,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Capital Metro Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Donita B,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Capital Metro Area),
Agency.
Appeal No. 0120180086
Agency No. 1K271004417
DECISION
Complainant timely appealed to the Equal Employment Opportunity Commission ("EEOC" or "Commission") from the Agency's September 7, 2017 dismissal of her complaint of unlawful employment discrimination in violation of 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
At the time of events giving rise to this complaint, Complainant worked as a Mail Processing Clerk, PS-06, at the Agency's Greensboro Processing and Distribution Center facility in Greensboro, North Carolina.
On May 18, 2017, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of disability (physical, on the job injury) and age (61) when:
on April 26, 2017, Complainant became aware that she had been charged absent without official leave ("AWOL") instead of leave without pay ("LWOP") in December 2016 and January 2017, and dating back to 2014.
In October 2014, Complainant sustained a workplace injury covered by the Office of Workers Compensation Programs ("OWCP"). Due to ongoing symptoms and difficulty coordinating work within her restrictions, Complainant was absent, receiving workers' compensation payments, from December 21 through 31, 2016 and from January 7 through 13, 2017. According to Complainant, she called the Agency's automated system to specify her leave code as LWOP, and faxed the OWCP approved medical documentation to the facility. However, Complainant's manager (age, disability status not provided) ("M1") states that Complainant did not call in, and they did not receive Complainant's medical information until Complainant returned, so Complainant's absences had been marked AWOL.
For unspecified reasons, Complainant did not become aware of this until April 26, 2017. Upon further review, Complainant alleges in the record that the incorrect payroll coding dates to 2014. Complainant informed the Supervisor Distribution Operations (age, disability status not provided) ("SDO") who issued corrections for all of Complainant's AWOL coded absences to reflect LWOP from September through December 2016. SDO alleges that Complainant's requests for changes to payroll dating back to 2014 are an attempt to "backpedal for years of LWOP" as the dates now count against Complainant's retirement date.
The Agency dismissed Complainant's complaint for untimely EEO counselor contact under 29 C.F.R. � 1614.107(a)(2), and alternately, for failure to state a claim, under � 1614.107(a)(1).
ANALYSIS AND FINDINGS
In relevant part, 29 C.F.R. � 1614.107(a)(2) provides that the agency shall dismiss a complaint or a portion of a complaint that fails to comply with the applicable time limits contained in �1614.105. 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 45 days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within 45 days of the effective date of the action. The Commission has adopted a "reasonable suspicion" standard (as opposed to a "supportive facts" standard) to determine when the 45-day limitation period is triggered. See Howard v. Dep't of the Navy, EEOC Request No. 05970852 (Feb. 11, 1999). Thus, the time limitation is not triggered until a complainant reasonably suspects discrimination, but before all the facts that support a charge of discrimination have become apparent. See Complainant v. United States Postal Serv., EEOC Appeal No. 0120120499 (Apr. 19, 2012).
Where, as here, there is an issue of timeliness, "[a]n agency always bears the burden of obtaining sufficient information to support a reasoned determination as to timeliness." Guy v. Dep't of Energy, EEOC Request No. 05930703 (Jan. 4, 1994) (quoting Williams v. Dep't of Defense, EEOC Request No. 05920506 (Aug. 25, 1992)). The Agency met its burden by establishing that reasonable suspicion of the alleged actions existed for Complainant well before she brought this complaint, as she was first marked AWOL in 2014. The Agency also successfully established Complainant's knowledge of the EEO process, including its deadlines, by noting Complainant's two EEO complaints, one of which was appealed to this Commission. See Williams v. Dep't of Homeland Security, EEOC Appeal No. 0120111236 (Oct. 4, 2011) citing Coffey v. Dep't. of the Navy, EEOC Request No. 05901006 (Nov. 16, 1990) (The Commission has consistently held that a complainant who has engaged in prior EEO activity is deemed aware of the time frames required for filing complaints in the EEO procedure).
On appeal, Complainant has presented no persuasive arguments or evidence warranting an extension of the time limit for initiating EEO Counselor contact. Accordingly, we find that the Agency properly dismissed Complainant's complaint for untimely EEO Counselor contact pursuant to 29 C.F.R. 1614.107(a)(2).
We also agree with the Agency's alternate grounds for dismissal, failure to state a claim. The regulation set forth at 29 CF.R. � 1614.107(a)(1) provides, in relevant part, that an Agency shall dismiss a complaint that fails to state a claim. The Commission has generally held that complaints involving other administrative proceedings, including those involving the OWCP and its related processes, do not state a claim within the meaning of its regulations. See Hogan v. Dep't of the Army, EEOC Request No. 05940407 (September 29, 1994); see also Schneider v. U.S. Postal Serv., EEOC Request No. 05A01065 (August 15, 2002). The Commission's rejection of such claims includes cases like this one; where the alleged discriminatory action is based on the Agency's alleged mishandling benefit claims and payroll rather than those of OWCP. Here, Complainant cites the Agency's failure to properly record her absence, based on the supporting medical documentation, she submitted. On appeal, Complainant continues to focus on her OWCP claim, as opposed to a separate violation of an EEO statute, further demonstrates that the instant complaint is an attempt to lodge a collateral attack on the workers' compensation process, outside the Commission's jurisdiction. The proper venue to pursue an OWCP matter is through the OWCP within the Department of Labor.
CONCLUSION
Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED.
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 (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 8, 2018
__________________
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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