0120180993
03-29-2018
Minnie M,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Eastern Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Minnie M,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.
Appeal Nos. 0120180728 & 0120180993
Agency Nos. 1C441005917, 1C441000918
DECISION
Complainant filed timely appeals with the Equal Employment Opportunity Commission (EEOC or Commission) from Agency decisions dated November 22, 2017 (Dismissal I), and January 3, 2018 (Dismissal II), dismissing her complaints 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. Pursuant to 29.C.F.R � 1614.606 we consolidate the appeals because they involve similar allegations of discrimination.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Mail Handler at the Agency's Processing & Distribution Center facility in Cleveland, Ohio. Pursuant to an on-the-job injury Complainant filed a claim with the Office of Workers Compensation Program (OWCP) which resulted in her working a four-day work week that does not include working on Mondays. On November 9, 2017, Complainant filed a formal complaint under Agency No. 1C441005917 alleging that the Agency subjected her to discrimination on the basis of disability (unspecified disabilities of the neck, hands, and arms) when on September 1, 2017:
1. Complainant was not assigned a holiday;
2. Complainant was paid OWCP wages instead of Holiday pay; and
3. Complainant was not permitted to work the holiday.
On December 21, 20172, Complainant filed a second formal complaint under Agency No. 1C441000918 alleging that the Agency subjected her to discrimination on the basis of disability (unspecified disabilities of the neck, hands, and arms) when on October 6, 2017:
4. Complainant was not assigned a holiday
5. Complainant was paid OWCP wages instead of Holiday pay; and
6. Complainant was not permitted to work the holiday
In Decisions I & II, the Agency dismissed all claims for failure to state a claim on the grounds that they constituted a collateral attack on the OWCP system.
ANALYSIS AND FINDINGS
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). 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 workers' compensation process, an internal agency investigation, or state or federal litigation. See Fisher v. Dep't of Defense, EEOC Request No. 05931059 (July 15, 1994). We find that claims 2, 3, 5, and 6 constitute improper collateral attacks on the workers' compensation process. The proper forum for Complainant to have raised her challenges to actions which resulted from her workers' compensation claims was during the workers' compensation process itself. Hence, we find that Complainant's claims 2, 3, 5, and 6 do not state a claim.
However, with regard to claims 1 and 4, Complainant argues that when a Federal holiday occurs on a Monday, which is a day she does not work, she should be entitled to a day off work separate from and in addition to her regularly scheduled Mondays off work, and that the Agency is therefore denying her a holiday. We find that the Agency has not shown that the decision to deny Complainant a day off on the first business day either directly preceding or following a Monday holiday, was decided by OWCP or the Department of Labor instead of by the Agency. The claim, therefore, does not constitute a collateral attack on the OWCP process. We note that 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). We find that being denied a day off constitutes a harm or loss to a term or condition of employment and therefore states a valid claim.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM Dismissals I & II in part and REVERSE in part, and REMAND claims 1 & 4 for further processing in according with this decision and the Order below.
ORDER (E0610)
The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. � 1614.108 et seq. The Agency shall acknowledge to the Complainant that it has received the remanded claim within thirty (30) calendar days of the date this decision becomes final. The Agency shall issue to Complainant a copy of the investigative file and also shall notify Complainant of the appropriate rights within one hundred fifty (150) calendar days of the date this decision becomes final, unless the matter is otherwise resolved prior to that time. If the Complainant requests a final decision without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of Complainant's request.
A copy of the Agency's letter of acknowledgment to Complainant and a copy of the notice that transmits the investigative file and notice of rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0617)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 (T0610)
This decision affirms the Agency's final decisions/actions in part, but it also requires the Agency to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which the Commission has affirmed and that portion of the complaint which has been remanded for continued administrative processing. 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 your appeal with the Commission, until such time as the Agency issues its final decision on your complaint. 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
March 29, 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 Dismissal II erroneously gave the formal complaint date as November 9, 2017.
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0120180728, 0120180993