Levi P.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency.Download PDFEqual Employment Opportunity CommissionNov 21, 20180120182802 (E.E.O.C. Nov. 21, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Levi P.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 0120182802 Agency No. 1G-731-0005-18 DECISION Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from an Agency final decision, dated July 11, 2018, pertaining to his 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. The Commission accepts the appeal in accordance with 29 C.F.R. § 1614.405. BACKGROUND During the relevant time, Complainant worked as a Motor Vehicle Operator at the Agency’s Tulsa Processing and Distribution Center in Tulsa, Oklahoma. Believing he was subjected to unlawful discrimination and a hostile work environment, Complainant contacted an EEO Counselor on February 23, 2018. Informal efforts to resolve Complainant’s concerns were unsuccessful. On June 8, 2018, Complainant filed a formal complaint. On February 23, 2018, Complainant initiated EEO Counselor contact. Informal efforts at resolution were not successful. On July 11, 2018, the Agency issued the instant final decision. The Agency framed the claims as follows: 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. 0120182802 2 1. On March 22, 2017, Complainant was questioned why he was in the building outside of his working hours and management yelled at him disrespectfully; 2. Since March 2017, management has incorrectly charged Complainant leave, by not charging a portion of his leave to the Department of Labor (DOL); 3. From January 26, 2018 through May 23, 2018, Complainant received several Letters of Indebtedness. and his request for reconsideration and for records indicating the reason that the letters were issued, were not acknowledged or addressed. The Agency dismissed the entire formal complaint. Specifically, the Agency dismissed claim (1) for untimely EEO Counselor contact. The Agency noted that the alleged incident occurred on March 22, 2017, but that Complainant did not raise the matter with an EEO Counselor until, almost a year later, on February 23, 2018. Moreover, the Agency stated that EEO posters were on display, describing the forty-five-day time limit, thereby imputing Complainant with constructive knowledge. The Agency dismissed claim (2) for failure to state a claim, as a collateral attack on another process. The Agency found that Complainant alleged that management improperly coded his hours. Instead of charging him with 4 hours of leave and allowing the Department of Labor to charge the remaining 4 hours based on Complainant’s limited-duty assignment and OWCP benefits. The Agency reasoned that the approval or denial of such benefits is determined by the Office of Worker’s Compensation program of DOL. Similarly, the Agency dismissed claim (3) as a collateral attack on the administrative process under the Debt Collection Act. The Agency implements the Act by providing for administrative hearings before independent Administrative Law Judges, and determined that Complainant cannot use the EEO process to circumvent those procedures. Complainant filed the instant appeal. ANALYSIS AND FINDINGS Claim (1) 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 adopted a "reasonable suspicion" standard (as opposed to a "supportive facts" standard) to determine when the forty-five (45) day limitation period is triggered. See Howard v. Dep’t of the Navy, EEOC Request No. 05970852 (Feb. 11, 1999). 0120182802 3 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. 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, regarding claim (1), Complainant explains that while he was at the facility looking for his supervisor, he was directed to go to the manager’s office. The manager “stands up in a very threatening manner and yells out ‘Man you don’t know who you’re messing with.’” While Complainant contends the incident is part of a continuing pattern of harassment, Complainant does not describe any other incidents with the manager. Moreover, he asserts that he was unaware of the forty-five day. However, the record contains an affidavit reflecting that EEO posters, describing the time limit, were on display at the facility. Therefore, we find that Complainant had constructive knowledge of the applicable time limits. See Santiago v. U.S. Postal Serv., EEOC Request No. 05950272 (July 6, 1995). Claims (2) and (3) An employee cannot use the EEO complaint process to lodge a collateral attack on another proceeding. See Wills v. Dep’t of Def., EEOC Request No. 05970596 (July 30, 1998); Kleinman v. U.S. Postal Serv., EEOC Request No. 05940585 (Sept. 22, 1994); Lingad v. U.S. Postal Serv., EEOC Request No. 05930106 (June 25, 1993). The proper forum for Complainant to have raised his challenges to actions which occurred during the arbitration proceeding was at that proceeding itself. It is inappropriate to now attempt to use the EEO process to collaterally attack actions which occurred during the arbitration process. Here, in claim (2), Complainant argues that management instructed the administrative staff not to use the correct code for his time and attendance. Nonetheless, the matter concerns leave related to his OWCP benefits and therefore it is outside of the Commission’s jurisdiction. The matter was properly dismissed for failure to state a claim. As for claim (3), Complainant contends that the debt letters were a form of retaliatory harassment that management has done “to other employees who have filed worker’s compensation claims.” The Commission finds, however, that the proper forum for Complainant to have raised such challenges was within the Debt Collection Act process. Finally, we note that on appeal Complainant states that the formal complaint contained a fourth claim that was not reflected in the Agency’s final decision. The Notice of Right to File Individual Complaint includes an additional claim wherein Complainant alleged that on February 6, 2018, the Plant Manager did not produce the documents Complainant requested on 0120182802 4 February 1, 2018. A review of the lengthy attachment to the formal complaint explains that the records request related to the debt letters. Therefore, we find that this claim was encompassed in the Agency’s framing of claim (3). CONCLUSION The Agency’s final decision to dismiss the formal complaint for the reasons discussed above was proper and 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). 0120182802 5 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 November 21, 2018 Date Copy with citationCopy as parenthetical citation