0120160253
03-23-2016
Elfrieda R.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Western Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Elfrieda R.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Western Area),
Agency.
Appeal No. 0120160253
Agency No. 1E981003615
DECISION
Complainant timely appealed to this Commission from the Agency's decision dated September 24, 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 Maintenance Supply Clerk (Level 7) at the Agency's Spokane Processing and Distribution Center ("PD&C") in Spokane, Washington.
On August 29, 2015, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the basis of sex (female) when on or about November 29, 2012, she became aware that her entire National Guard service time will not be credited toward her retirement under the Federal Employees' Retirement System (FERS).
Prior to working for the Agency, Complainant served in the Air National Guard. She learned she was eligible for a "buy back" program and retirement benefits based on her years of service added to her FERS account. To qualify, the Agency's HR Shared Service Center ("HRSSC") had to submit forms to the Office of Personnel Management ("OPM"), indicating when Complainant's service status was "active"(federal) under Title 10 or state service under Title 32. Complainant would only be credited for hours she served under Title 10 because the program was federally funded.
Complainant alleges that in March 2012, HRSSC failed to properly complete the forms, denying her credit for approximately 14 years on active reserve, as well as approximately 3 months of active service. As a result, in April 2012, Complainant received a letter denying her eligibility for the program. By letter dated October 7, 2012, Complainant asked HRSSC to reconsider the denial. Complainant received the final denial letter on November 29, 2012.
On December 28, 2012, Complainant filed a grievance with the MSPB. During processing, Complainant learned that the proper venue to bring her claim was the Office of Special Counsel ("OSC"). She withdrew her grievance, which was dismissed without prejudice on January 14, 2013, and filed a claim with the Department of Labor OSC. On April 4, 2013, OSC dismissed her claim for lack of jurisdiction. (OSC file No. DP -13-1443).
During processing of the instant complaint, HRSSC assigned an HR Specialist who reviewed the matter and contacted Agency headquarters and other agencies to ascertain Complainant's status during the relevant time frame. The HR Specialist concluded that Complainant's Air National Guard status fell under Title 32, and the paperwork could not be amended.
The Agency dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely EEO Counselor contact. Alternately, the Agency found the complaint failed to state a claim pursuant to 29 C.F.R. � 1614.107 on two grounds: first, under 29 C.F.R. � 1614.107(4) and 29 C.F.R. � 1614.302(c) because Complainant already brought the matter before the Merit System Protection Board ("MSPB") and because Complainant was bringing the matter in an improper forum because her complaint falls within the jurisdiction of the Office of Personnel Management (OPM).
ANALYSIS AND FINDINGS
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 a personnel action, within forty-five (45) days of the effective date of the action.
The record discloses that the alleged discriminatory event occurred on November 29, 2012, but Complainant did not initiate contact with an EEO Counselor until July 21, 2015, which is beyond the forty-five (45) day limitation period. On appeal, Complainant explains the over two year delay was because she had been pursuing other administrative remedies during that time (beginning her formal complaint, "after exhausting all ideas and getting no help, I have come to you"). We are not persuaded to waive the limitation period on these grounds. The Commission has consistently held that the utilization of agency procedures, union grievances, and other remedial processes does not toll the time limit for contacting an EEO Counselor. See Ellis v. United States Postal Serv., EEOC Appeal No. 01992093 (Nov. 29, 2000)
The Commission has also held that an employee cannot use the EEO complaint process to lodge a collateral attack on another forum's administrative proceeding. See Wills v. Dep't of Def., EEOC Request No. 05970596 (July 30, 1998); Kleinman v. U.S. Postal Serve, EEOC Request No. 05940585 (Sept. 22, 1994); Lingad v. U.S. Postal Serv., EEOC Request No. 05930106 (June 25, 1993). The Commission's findings of collateral attack include cases like this one; where the claim of discrimination is based on the Agency's actions when engaging in an administrative process with another entity, here, OPM. See Schneider v. U.S. Postal Serv., EEOC Request No. 05A01065 (August 15, 2002) (rejecting complainant's claim that the Agency's delay in processing her paperwork constituted harassment); Hogan v. Dep't of the Army, EEOC Request No. 05940407 (September 29, 1994) (reviewing a claim that agency officials provided misleading statements to OWCP would require the Commission to essentially determine what workers' compensation benefits the complainant would likely have received)
The proper forum for Complainant to have raised her challenge would be the Office of Personnel Management (OPM).
CONCLUSION
Accordingly, the Agency's final decision dismissing Complainant's complaint 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
Carlton M. Hadden, Director
Office of Federal Operations
March 23, 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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