0120092313
06-07-2010
Odell A. Robinson, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southwest Area), Agency.
Odell A. Robinson,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southwest Area),
Agency.
Appeal No. 0120092313
Agency No. 4G720000609
DECISION
Complainant filed an appeal with this Commission from the agency's
decision dated March 2, 2009, 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., 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. In her complaint,
complainant alleged that she was subjected to discrimination on the bases
of race (Black), sex (female), disability (Carpal Tunnel Syndrome, knees,
neck, right shoulder), age (53), and in reprisal for prior protected
EEO activity when:
1. Beginning June 25, 2008, complainant was harassed in regards to her
Office of Workers' Compensation Programs (OWCP) claim(s);
2. Beginning October 2, 2008, complainant was denied or provided limited
time with a union representative;
3. Beginning October 2, 2008, management questioned complainant and
other employees about complainant's work performance; and
4. On October 21, 2008, complainant's modified job offer was changed.
The agency dismissed issues 1 and 3 pursuant to 29 C.F.R. �
1614.107(a)(1), for failure to state a claim. With regard to issue
1, the agency noted that complainant alleged that she was harassed
with regards to her OWCP claims when she was told by another employee
that complainant's manager said he was going to find complainant more
productive work; complainant's manager told complainant he may have to
change her work hours; complainant's manager instructed complainant to do
web bats and box mail; complainant's manager talked to complainant about
going to a different office to perform CFS duties1; and complainant's
manager gave complainant instructions regarding the correct way to
complete OWCP Form CA-17. The agency noted that complainant also
alleged a Privacy Act violation claiming that on September 30, 2008,
her OWCP documentation was provided to Supervisor A. The agency stated
that Privacy Act claims are outside of the Commission's jurisdiction.
The agency noted that in issue 3, complainant claimed that beginning on
October 2, 2008, management questioned complainant and other employees
about complainant's work performance. The agency noted complainant
described such incidents as complainant's manager instructing her she was
not permitted to go into the break room immediately after she clocked in
and a clerk telling complainant the manager had asked her if complainant
was moving the mail.
With regard to issues 1 and 3, the agency found the complaint was not
sufficiently severe or pervasive to constitute harassment. Moreover,
the agency found complainant did not establish that she suffered a harm
or loss to a term, condition or privilege of employment.
The agency also dismissed issue 2 for failure to state a claim.
Specifically, the agency stated that the claim of not being afforded
a union representative is a collateral attack on the grievance process
and outside of the Commission's jurisdiction.
The agency dismissed issue 4 for failure to state a claim. The agency
noted that complainant had an accepted on-the-job injury and had been
working a modified job offer 4 hours a day and was being compensated by
OWCP for the remaining 4 hours. The agency noted that on October 21,
2008, management issued complainant a letter that stated the restrictions
listed on her most recent CA-17, submitted on October 15, 2008, were
in conflict with complainant's current work restrictions. The agency
noted that based on complainant's latest CA-17 stating she could only
work 1-2 hours per day of simple grasping, she was informed that she
would be provided two hours of work within her restrictions and she could
then take sick leave, annual leave or LWOP for the remaining two hours,
or she could request light duty work for those two hours. The agency
stated that there is no evidence that complainant requested light duty
for the remaining two hours and thus, argued that there is not evidence
to support complainant's allegation that management is refusing her two
hours of work on a daily basis. The agency also determined that issue
4 involved a collateral attack on the OWCP process.
Upon review, we find issue 2 was properly dismissed by the agency as
raising a collateral attack on the grievance process. 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).
Complainant's concerns regarding union representation are not within the
Commission's jurisdiction and should be addressed under the collective
bargaining agreement.
Similarly, we find the agency properly dismissed issue 4. The record
reveals complainant is challenging the agency's decision to change her
modified job offer in accordance with a CA-17 form she submitted on
October 18, 2008. We find this claim constitutes a collateral attack
on the OWCP process. Complainant's concerns regarding the agency's
failure to provide her adequate work within her restrictions is outside
the Commission's jurisdiction and should be addressed through the OWCP
process.
With regard to issue 1, to the extent complainant is challenging the
outcome of the OWCP proceedings, we find this issue should be dismissed
for alleging a collateral attack on the OWCP process. Additionally we
find that the agency properly noted that a Privacy Act violation is
outside of the Commission's jurisdiction. Moreover, with regard to
the specific incidents alleged in issue 1 and issue 3, we find these
issues fail to state a claim because complainant did not show that she
suffered harm or loss with respect to a term, condition, or privilege
of employment for which there is a remedy. See Diaz v. Department of
the Air Force, EEOC Request No. 05931049 (April 21, 1994). Moreover,
we find that the incidents alleged in issues 1 and 3, even if proven
to be true and viewed in a light most favorable to complainant, would
not indicate that complainant has been subjected to harassment that was
sufficiently severe or pervasive to alter the conditions of employment.
See Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March
13, 1997). Finally, we find the alleged agency actions in issues 1 and
3 were not of a type reasonably likely to deter complainant or others
from engaging in protected activity.
Accordingly, the agency's decision dismissing complainant's complaint
is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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), 9-18 (November 9, 1999). 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 (S0408)
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 (Z1008)
If you decide to file a civil action, and if you do not have or cannot
afford the services of an attorney, you may request from the Court that
the Court appoint an attorney to represent you and that the Court also
permit you to file the action without payment of fees, costs, or other
security. See Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended,
29 U.S.C. �� 791, 794(c). The grant or denial of the request is within
the sole discretion of the Court. Filing a request for an attorney with
the Court does not extend your time in which to file a civil action.
Both the request and the civil action must be filed within the time limits
as stated in the paragraph above ("Right to File A Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
June 7, 2010
__________________
Date
1 The agency noted complainant does not claim she was forced to go to a
different location, only that the Postmaster talked to her about going
to another office to perform CFS duties. The agency noted complainant
did not go to a different office.
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0120092313
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120092313