0120181801
08-31-2018
Karolyn E,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Pacific Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Karolyn E,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 0120181801
Agency No. 4F913011517
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision (Dismissal) dated April 12, 2018, 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Supervisor, Customer Services, EAS-17, at the Agency's Post Office facility in Lancaster, California. On January 8, 2018, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of sex (female), disability (fractured pelvis, associated left leg drop, seizure), age (52), and reprisal for prior protected EEO activity under an EEO statute that was unspecified in the record when:
1. In February 2016, Complainant's Postmaster (PM) provided false information to the Department of Labor, Office of Worker's Compensation Programs (OWCP);
2. Since an unspecified date, PM has refused to properly code Complainant's time related to her approved OWCP claim; and;
3. On an unspecified date, S failed to offer Complainant her position back to her when Complainant was ready and able to return to work
The Agency dismissed the claims on various grounds. The Agency found that claim 1 stated a collateral attack against another proceeding, and further found that Complainant's EEO Counselor contact was untimely with regard to claims 1 & 2. Finally, with regard to claim 3, the Agency found that Complainant failed to state a claim.
ANALYSIS AND FINDINGS
With regard to claim 1, we note that the Commission has held that an employee cannot use the EEO complaint process to lodge a collateral attack on another proceeding. See Wills v. Department of Defense, EEOC Request No. 05970596 (July 30, 1998); Kleinman v. United States Postal Service, EEOC Request No. 05940585 (September 22, 1994); Lingad v. United States Postal Service, EEOC Request No. 05930106 (June 25, 1993). The proper forum for complainant to raise her challenges to PM's alleged failure to provide accurate information to the Department of Labor, OWCP, is generally within that proceeding itself. Hence, we find that Complainant's claim does not state a claim.
With regard to claim 2, EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of discrimination 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. In its Dismissal, the Agency found that neither Complainant's request for pre-complaint counseling, her formal complaint, correspondence from her attorney dated February 15, 2018, with "more specific explanation", nor Complainant's affidavit identified a specific date of any incident, despite Agency requests to provide such information. The Agency further noted that PM conducted a "pay adjustment" of Complainant's pay around late February, early March of 2017. The record shows that Complainant did not contact an EEO Counselor until September 28, 2017. Assuming Complainant is referring to PM's February/March "pay adjustment" her Counselor contact is beyond the forty-five (45) day limitation period.
EEOC regulations provide that the agency or the Commission shall extend the time limits when the individual shows that she was not notified of the time limits and was not otherwise aware of them, that she did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence she was prevented by circumstances beyond her control from contacting the Counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission. On appeal, Complainant has presented no persuasive arguments or evidence warranting an extension of the time limit for initiating EEO Counselor contact.
If Complainant is not referring to PM's February/March pay adjustment but instead referring to an incident that occurred on another date, we find that by failing to include the specific date of such an alleged Agency action, despite Agency requests to do so, Complainant fails to state a claim.
With regard to claim 3, the Agency found that Complainant failed to state a claim on the grounds that Complainant did not request to return to duty. The Agency further found that Complainant was issued a return-to-work letter on January 26, 2018 but that she replied that she would not be returning to work due to her medical condition. Regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in part, that an Agency shall dismiss a complaint that fails to state a claim. An Agency shall accept a complaint from any employee or applicant for employment who believes he or she has been discriminated against by that Agency because of race, color, religion, sex, national origin, age, disabling condition, genetic condition, or reprisal. 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). Complainant has not submitted a brief on appeal and has not shown she incurred a present harm or loss with respect to a term, condition or privilege of employment as she has not shown the Agency was under an affirmative obligation to request her to return to duty after she notified the Agency she would not be returning.
CONCLUSION
The Dismissal 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 31, 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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0120181801