0120181963
08-17-2018
James T.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
James T.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Southern Area),
Agency.
Appeal No. 0120181963
Agency No. 1G731000118
DECISION
Complainant timely appealed with the Equal Employment Opportunity Commission ("EEOC" or "Commission") from the Agency's April 23, 2018 dismissal of 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., 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 Processer Clerk at the Agency's Processing and Distribution Center in Oklahoma City, Oklahoma.
On March 27, 2018, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (Asian), national origin (Vietnamese), sex (male), color (Yellow), disability (physical, on the job injury impacting head and neck), age (over 50), and reprisal for prior protected EEO activity2 when:
1. Beginning October 20, 2017, and ongoing through the date of filing, Management only schedules him to work for 4 hours per day, and,
2. On or about October 31, 2017, he became aware that the compensation forms he submitted had not been sent to the Department of Labor, Office of Workers Compensation Program ("OWCP"), in a timely manner.
The Agency dismissed Complainant's complaint pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim.
ANALYSIS AND FINDINGS
Under the regulations set forth at 29 C.F.R. Part 1614, an agency shall accept a complaint from an 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. Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994).
Claim 1
EEOC Regulation 29 C.F.R. � 1614.107(a)(1) provides for the dismissal of a complaint that states the same claim that is pending before or has been decided by the Commission or the Agency. To be dismissed as the "same claim," the present formal complaint and prior complaint must have involved identical matters. The Commission has consistently held that for a formal complaint to be dismissed as identical, the elements of the complaint must be identical to the elements of the prior complaint in time, place, incident, and parties. See Jackson v. United States Postal Serv., EEOC Appeal No. 01955890 (Apr. 5, 1996).
The Agency dismissed Claim 1, finding that the underlying facts were the same as an allegation Complainant raised in Agency Case No. 1G731000317 ("Complaint 1"). The matter is currently pending a hearing before an EEOC Administrative Judge ("AJ"). In relevant part, Complaint 1 alleges that "[s]ince on or about April 8, 2017, [Complainant was] provided with a light duty position of 4 hours per day." The Agency argues that the instant complaint, which alleges "[s]ince on or about October 20, 2017, [Complainant was] provided with a light duty position of 4 hours per day" should be dismissed because it "is merely a reiteration and extension of the previous complaint."
On appeal, Complainant contends that Agency improperly framed his allegations in both complaints, and that it did so deliberately here so the underlying facts would appear the same.
In relevant part, Complainant's Formal Complaint for Complaint 1 alleged:
On April 8, 2017, after being sent home by Management for 5 months, suddenly, Management offers me a limited duty position, at the restriction that I could only work on the machine for 4 hours per day and not my full 8 hours. In addition, I was restricted to the shredder machine. Complainant further specifies "I was not allowed to work in the other light duty/limited duty employee positions (PARS, 030,050, Waste Mail, Register Unit...) I could have performed those jobs, within my restrictions and worked 8 hours per day as "the other employees Management allowed them.
For Claim 1 of the instant complaint, Complainant's Formal Complaint alleges:
From October 22, 2017 to December 3, 2017 and it is still ongoing, I have been sent home 4 hours per day because Management claimed there was no work within my limitations. However, witness statements showed that there was plenty of manual mail to be worked that was within limitations. Management has allowed other employees to perform manual duties that have on the job injuries; Additionally, Management assigned non-injury... Clerks performing manual duties on Waste Mail Unit, Express Mail Unit, 111 belt, MOB Unit, these assignments were within my medical limitations; but Management sent me home while these noninjury PSE Clerks and noninjury Regular Clerks worked the Manual assignments that I could perform within my limitations. This is an ongoing case for more than a YEAR since November 13, 2016.
Based on Complainant's framing of the allegations, we find the Agency properly dismissed Claim 1 for raising the same claim in a prior complaint. Both claims are identical in time, as they overlap and are ongoing. They both concern the same incident and parties, namely Management scheduling Complainant for 4 hour shifts despite the alleged availability of multiple assignments within his restrictions. Also, we do not find the Agency's framing of Complainant's allegations, improper, as they both ultimately allege the same discriminatory action, a 4 hour work schedule.
As Complaint 1 is still pending, Complainant may file a "Motion to Amend" with the assigned AJ at the appropriate EEO District Office, to combine Claim 1 of this complaint with the corresponding allegation in Complaint 1. Such a motion would be granted at the AJ's discretion.
Claim 2
The Commission has held that a claim of harassment may survive if it alleges conduct that is sufficiently severe or pervasive to alter the conditions of the complainant's employment. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993).
However, we have generally held that complaints involving another administrative proceeding fail to state a claim within the meaning of EEOC regulations, as they constitute impermissible attempts to lodge a collateral attack. See Wills v. Dep't of Defense. EEOC Request No. 05970596 (July 30, 1998) other citations omitted. A claim that can be characterized as a collateral attack, by definition, involves a challenge to another forum's proceeding, such as workers' compensation and related OWCP processes. See Fisher v. Dep't of Defense, EEOC Request No. 05931059 (July 15, 1994). For instance, in Hogan v. Department of the Army, we reasoned that an allegation that agency officials provided misleading statements to OWCP was an attempt to lodge a collateral attack because reviewing such a claim would require the Commission to determine what workers' compensation benefits the complainant would likely have received, which is outside EEOC authority. EEOC Request No. 05940407 (Sept. 29, 1994).
We have previously held that claims of harassment alleging that an agency mishandled OWCP benefit claims and payroll, still represent an impermissible collateral attack, and thereby fail to state a claim. See, e.g. Schneider v. U.S. Postal Serv., EEOC Request No. 05A01065 (Aug. 15, 2002) (agency allegedly causing a delay in processing OWCP paperwork fails to state a claim of harassment); (Bell v. Dep't of Transportation, EEOC Appeal No. 01991806 (Jan. 11, 2001) (agency's alleged failure to ensure that records related to a Workers Compensation claim were accurate and complete, and that it allegedly falsified OWCP documents, does not state a claim).
On appeal, Complainant emphasizes that Claim 2 is not a collateral attack because the alleged harassment stems from the actions by Agency employees, during a portion of OWCP processing entirely within Agency control. Specifically, he alleges that two Agency human resources specialists responsible for submitting his CA-7 forms for wage reimbursement and recovering sick leave related to his on the job injury (both types of Workers Compensation) intentionally delayed his processing for months by submitting "incorrect figures" to the Agency's Payroll Services Branch. As previously stated, the Commission has long rejected this argument. Claim 2 was properly dismissed as an attempt to lodge an impermissible collateral attack.
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
August 17, 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.
2 EEOC Appeal No. 0120172122 (Aug. 24, 2017), EEOC Hearing No. 560201800115X (pending) for Agency Case No. 1G731001317, and Agency Case Nos. 1G731003216, 1G731002616, 1G731000317, 1G731001717, and 1G7310027417. Complainant also filed multiple grievances related to his protected disability status.
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