0120161366
06-09-2016
Jae S.,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
Jae S.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.
Appeal No. 0120161366
Agency No. 4J530002616
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated February 17, 2016, dismissing his 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., the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq., and Title II of the Genetic Information Nondiscrimination Act of 2008, 42 U.S.C. � 2000ff et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Electric Technetium at the Agency's Quad Cities Processing and Distribution Center in Milan, Illinois and as a Custodial Laborer at the Agency's Freeport Post Office in Freeport, Illinois.
On February 4, 2016, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (white), sex (male), religion (Republican), color (white), disability (mental), age (60), genetic information (unspecified family condition) and reprisal for prior EEO activity (Agency Nos. 1E623000111 and 1E501000415) when:
1. On October 29, 2015, he was disciplined by a former supervisor at Quad Cities P&DC ("S1") at the Flat Sorter;
2. On an unspecified date Complainant's former supervisor, the Maintenance Manager at Quad Cities P&DC ("S2"), harassed him and his doctor to such an extent that it caused Complainant to lose his doctor;
3. On December 13, 2015, his grievances were denied and mailed back to him;
4. On December 17, 2015, he was issued a "Placement in Non-duty Status/Administrative Leave," which he was asked to sign;
5. On December 17, 2015, he was not provided with union representation; and
6. On December 29, 2015, he was scheduled for a Fitness for Duty Examination.
On appeal, Complainant raised two additional claims:
7. On February 11, 2016, he was issued a "Change in Non-Duty/Pay Status" which placed him on unpaid administrative leave until medically cleared to return to duty; and
8. On February 17, 2016, Complainant did not receive a copy of the PS Form 2570 EEO Dispute Resolution Specialist's (DRS) Inquiry Report with the Final Agency Decision, even though it is listed as an enclosure.
On November 14, 2015 Complainant began working at the Freeport Post Office. His transfer from the Quad Cities P&DC (along with a lump sum payment of $5,000) was consideration provided by the Agency in accordance with a settlement agreement dated October 21, 2015. Complainant's first two claims in the instant complaint concern his prior supervisors at the Quad Cities P&DC.
The remaining claims arose after Complainant's transfer, and mainly concern an incident that occurred on December 1, 2015. Complainant, who had been on the job for two weeks was asked to go to the basement men's room to mop up standing water that had accumulated from a leak. Complainant understood this to mean he was also supposed to clean the bathroom, which he had not yet been trained to do. Complainant alleges that the bottles in the cleaning supply area lacked the Materials Safety Data Sheet (MSDS) labels required by the Occupational Safety and Health Administration ("OSHA"), which, among other things explain reactivity and toxicity. He chose three bottles, later identified as a solution with 23 percent hydrochloric acid, and poured them out in the basement men's bathroom causing strong chemical fumes.
Complainant told the Postmaster that he has been "mixing chemicals" in the bathroom and that he would call the fire department because he could not find the MSDS sheets. The Postmaster told him not to call the fire department, directing him to the Maintenance Mechanic who could show him where the MSDS sheets were kept. Complainant refused to speak with the Postmaster and Maintenance Mechanic without a union representative and ignored her order not to call the fire department. Two ambulances and the Fire Chief arrived and the incident was resolved by ventilating and flushing the area with water. The Postmaster alleges that the Fire Chief suggested to her that Complainant undergo a psychological evaluation. Complainant left, but returned later that day and met with the Postmaster, who describes their conversation as "all over the place." He alleged he suffered from tingling and internal bleeding as a result of the fumes and made unusual statements about how Agency headquarters took away his email and how he has the head of the Agency on speed dial. He then said "This whole thing never happened." The Postmaster alleges that after Complainant arrived she received multiple comments from other employees that complainant's behavior was "off." The December 1, 2016 incident the incident made her feel concerned for employee safety.
The Postmaster pursued a Fitness for Duty Examination ("FFDE") for Complainant. During this time frame, On December 11, 2015, Complainant sent the Postmaster about ten grievances via certified mail, some concerning incidents at his previous position. The Postmaster replied to the first three on December 13, 2015 stating that Step I Grievances are not handled by the Postmaster (yet she "dismissed" them) and sent the rest back to Complainant unopened. Complainant was placed on paid administrative leave on December 17, 2015, pending the results of a FFDE, which was later scheduled for December 29, 2015. On February 11, 2016, the Agency informed Complainant that "as a result of the fitness for duty examination you have been found to be unfit for duty due to a non-work related condition," placing him on unpaid administrative leave pending medical approval to return.
The Agency dismissed all of Complainant's claims for failure to state a claim on various grounds pursuant to 29 C.F.R. � 1614.107 and alternately dismissed Claim 1 for untimely contact with an EEO Counselor pursuant to 29 C.F.R. �1614.107(a)(2).
ANALYSIS AND FINDINGS
Claim 1
EEOC Regulation 29 C.F.R. �1614.107(a)(2) states, in relevant part, 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 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 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. 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) and Kader v. Unit States Postal Serv., EEOC Request No. 05980473(June 24, 1999) The alleged discriminatory act in Claim 1 occurred on October 29, 2015, but Complainant did not seek counseling until December 28, 2015, which is beyond the 45-day limitation period. The Agency provides sufficient proof in the record that Complainant was aware of the forty five (45) day time limit. On appeal, Complainant does not provide any reason for the delay in seeking EEO counseling.
As Claim 1 was properly dismissed for untimely EEO Counselor contact pursuant to 29 C.F.R. 1614.107(a)(2), we decline to address the Agency's alternate finding that Claim 1 fails to state a claim pursuant to 29 C.F.R. 1614.107(a)(1).
Claims 2, 4, and 6
EEOC Regulation 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. See Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (April 21, 1994). If complainant cannot establish that s/he is aggrieved, the agency shall dismiss a complaint for failure to state a claim. 29 C.F.R. � 1614.107(a)(1).
In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986), that harassment is actionable if it is sufficiently severe or pervasive to alter the conditions of the complainant's employment. Thus, not all claims of harassment are actionable. After a thorough review of the record, taking into consideration the standard of review for reprisal claims, we find Complainant fails to establish that he is an "aggrieved employee" with regard to Claims 2, 4, and 6. Moreover, we agree with the Agency's determination that Claim 2 is too vague establish whether S1's alleged actions were sufficiently severe or pervasive to state a claim of harassment.
Claims 3 and 5
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 (July 30, 1998) We have maintained this precedent even when applying the "broad view of coverage" afforded to reprisal claims. See Complainant v. United States Postal Serv., EEOC Appeal No. 0120142489 (Oct. 23, 2014) (finding a complainant's allegation that denial union representation constituted reprisal for past EEO activity was a collateral attack on the grievance process and involved actions inextricably intertwined with the processing and administration of appellant's grievance).
Claim 3 concerns Complainant's attempt to file a grievance, constituting a collateral attack on another forum's proceeding, namely the negotiated grievance process between the Agency and the Union. On appeal, Complainant appears to argue that the filing process and not the decision of the grievance was at issue. Specifically, he alleges that he sent his grievances by certified mail to the Postmaster because he could not physically hand them to the appropriate individual. We have previously found that a claim concerning the manner in which a grievance was handled constitutes a collateral attack as "a request for intervention that if granted would be improper and superfluous." Eng v. United States Postal Serv., EEOC No. 0120052627 (June 28, 2005)
Claim 5 concerns an alleged denial of union representation, which also constitutes a collateral attack on the negotiated 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) The proper forum to raise a claim regarding union representation is through the grievance process under the collective bargaining agreement or before the Federal Labor Relations Authority. See Simensen v. United States Postal Serv., EEOC Appeal No. 0120021068 (Feb. 26, 2002)
Additionally, there is no indication in the record that the alleged discriminatory acts in Claim 3 and 5 would be "reasonably likely to deter Complainant or others from engaging in protected activity," precluding a claim of retaliation. See Maclin; Complainant, supra.
Claim 7
Under EEOC Regulation 29 C.F.R. � 1614.106(d), a complainant may amend a complaint at any time prior to the conclusion of the investigation to include issues or claims like or related to those raised in the complaint. If Complainant raises a new claim after the investigation, he or she must raise it with an EEO Counselor pursuant to 29 C.F.R. � 1614.105. Hall v. United States Postal Serv., EEOC Appeal No. 0120031342 (Apr. 24, 2003)
The personnel letter in Claim 7 is like or related to Claims 4 and 6. However, Complainant's last opportunity to amend the instant complaint to include an additional like or related claim was January 29, 2016, when he received his Notice of Right to File. The letter in Claim 7 was issued on February 11, 2016. Therefore, Complainant cannot include it as a claim in the instant complaint. If Complainant wishes to pursue a separate complaint on this claim, then he must contact an EEO Counselor.
Claim 8
EEOC Regulation 29 C.F.R. � 1614.107(a)(8) provides that an agency shall dismiss a complaint that alleges dissatisfaction with the processing of a previously filed complaint. Chapter Five of the EEOC Management Directive 110 (MD-110) (Aug. 5, 2015) defines such a complaint as a "spin-off" complaint. MD-110 indicates further that "spin-off" complaints should be referred to the agency official responsible for complaint processing and/or processed as part of the original complaint.
Claim 8 is a "spin-off" complaint, because Complainant's allegation that the Agency failed to enclose the PS Form 2570 DRS Inquiry Report with its February 17, 2015 Final Agency Decision concerns dissatisfaction with a previously filed complaint. In order to pursue his allegation in Claim 8, Complainant must raise the matter with the Agency official responsible for complaint processing (as opposed to filing a new compliant). The Agency official will conduct an inquiry and issue Complainant a determination on the matter with appeal rights to this Commission.
CONCLUSION
Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION
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
This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. 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 filed your appeal with the Commission. 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. Filing a civil action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL
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
June 9, 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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