0120120843
12-05-2012
Phyllis M. Johnson, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Great Lakes Area), Agency.
Phyllis M. Johnson,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.
Appeal No. 0120120843
Agency No. 4J481011111
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision (Dismissal) dated October 31, 2011, 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 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 General Clerk at the Agency's Roseville Post Office facility in Roseville, Michigan. On October 4, 2011, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of age (date of birth not provided) and reprisal for prior protected EEO activity under an EEO statute that was unspecified in the record when:
1. On June 23, 2011, Management interrogated Complainant in a hostile and condescending manner regarding the details of an upcoming doctor's appointment;
2. On May 24, 2011, Management instructed Complainant to provide documentation for her absences;
3. On May 4, 2011, after Complainant asked for Family Medical Leave Act (FMLA) leave, Management instructed Complainant to contact customers and re-schedule their passport applications claiming that Complainant had been the one to schedule those customers and since she would now be out on leave during that period, she should be the one to contact the customers to re-schedule;
4. On November 2, 2010, Management stood outside the door and repeatedly rang the customer's service door bell while Complainant was assisting other customers;
5. On an unspecified date, Management failed to remove a Letter of Warning (LOW) from Complainant's electronic Official Personnel File (eOPF);
6. On unspecified date(s), Management has required Complainant to learn and perform additional duties, giving her the workload of two positions; and
7. On unspecified date(s) Management has paged Complainant to the office while she was on the telephone or assisting other customers; and
The Agency dismissed claims 1, 2, 3, 4, 6 and 7 for failure to state a claim, finding that Complainant was not harmed by the Agency's alleged actions, nor were the actions severe enough to constitute harassment. With regard to claim 5, the Agency found that the claim constituted a collateral attack on the grievance process. The Agency further found that claims 3, 4, and 5 should be dismissed for untimely EEO Counselor contact.
ANALYSIS AND FINDINGS
With regard to claims 1, 2, 3, 4 and 7, the Commission finds that the complaint fails to state a claim of disparate treatment under the EEOC regulations because Complainant failed to show that she was subjected to unwelcome verbal or physical conduct involving her protected classes, that the harassment complained of was based on her statutorily protected classes, and that the harassment had the purpose or effect of unreasonably interfering with her work performance and/or creating an intimidating, hostile, or offensive work environment. See McCleod v. Social Security Administration, EEOC Appeal No. 01963810 (August 5, 1999) (citing Henson v. City of Dundee, 682 F.2d 897 (11th Cir. 1982). Furthermore, with regard to claims 1, 2, 3, 4 and 7, Complainant has not shown 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). Accordingly, claims 1, 2, 3, 4, and 7 fail to state claims of either disparate treatment or harassment.
With regard to claim 6, however, we find that being over-burdened with work such that the workload becomes that of two positions is an action sufficient to cause a harm with respect to a term, condition or privilege of employment and that Complainant has therefore successfully stated a claim of disparate treatment. See Diaz. We further note that Complainant has claimed reprisal as a basis of discrimination. We note that the Commission interprets the statutory retaliation clauses "to prohibit any adverse treatment that is based on a retaliatory motive and is reasonably likely to deter the charging party or others from engaging in protected activity." EEOC Compliance Manual, Section 8 (Retaliation) at 8-13, 8-14 (May 20, 1998). The Agency, however, did not analyze Complainant's claims under this standard. With regard to claims 1, 2, 3, 4, and 7, we again find that Complainant fails to state a claim of reprisal because the actions alleged are not reasonably likely to deter Complainant or others from engaging in protected activity. However, with regard to claim 6, we again find that Complainant states a valid claim, this time with reprisal as a basis, because being burdened with the work of two positions is an action reasonably likely to deter Complainant or others from engaging in protected activity.
We further note, however, that on July 23, 2010, Complainant filed a complaint under Agency No. 4J-480-0057-10 wherein she alleged harassment based on age, including being assigned more time consuming and difficult assignments by her supervisor. The Agency dismissed the complaint and Complainant appealed to this Commission. See Johnson v. USPS, EEOC Appeal No. 0120103534 (February 4, 2011)(Complainant stated valid claim and claim remanded for further processing). In the instant complaint, Complainant has not stated when she was burdened with the work of two positions but in the earlier complaint, Complainant gave dates between March and April 2010. To the extent Complainant's allegations in the instant complaint do not refer to these same dates, Complainant's complaint should not be dismissed pursuant to 29 C.F.R. 1614.107(a)(1) for stating the same claim as a pending or previously-decided claim.
With regard to claim 5, the Agency found that the claim should be dismissed for untimely EEO Counselor contact and because the claim constituted a collateral attack on the grievance process. With regard to untimely EEO Counselor contact, EEOC regulations state that the Agency shall dismiss a complaint when the Complainant fails to contact an EEO Counselor within 45 days of the alleged discriminatory act. See 29 C.F.R. �� 1614.105(a)(1) and 107(a)(2). The Agency notes that Complainant first contacted a Counselor on June 22, 2011, "approximately 721 days after Management failed to remove a Letter of Warning from Complainants OPF in July 2009." Dismissal, p. 5. Complainant argues on appeal that "my complaint is that [the Agency] refuses to remove [the LOW] even though it was reduced to a Discussion." Complainant's November 24, 2011 Appeal Statement. Complainant, however, further states that "in February 2011 I noticed the letter was still in my" electronic personnel file. Id. Thus Complainant was aware as of "February 2011" that the LOW was still in her personnel file but she did not contact an EEO Counselor until June 22, 2011, which is beyond the 45-day limit. Complainant argues that she contacted a Union official to have the document removed. See id. We note, however, that the Commission has consistently held that internal appeals or informal efforts to challenge an agency's adverse action and/or the filing of a grievance do not toll the running of the time limit to contact an EEO Counselor. See Hosford v. Department of Veterans Affairs, EEOC Request No. 05890038 (June 9, 1989); Miller v. United States Postal Service, EEOC Request No. 05880835 (February 2, 1989). We therefore find that the Agency correctly found that Complainant's EEO Counselor contact was untimely. Because we find such contact to be untimely, we need not address the issue of whether or not the claim constitutes a collateral attack on the grievance process.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we find that claims 1, 2, 3, 4, 5, and 7 should be dismissed, but that claim 6 states a valid claim that should be investigated. We therefore AFFIRM the Agency's Dismissal in part and REVERSE in part, and we REMAND the claim to the Agency for further processing.
ORDER (E0610)
The Agency is ordered to process the remanded claim1 in accordance with 29 C.F.R. � 1614.108. 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 (K0610)
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 submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. 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 (M0610)
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), at 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 (T0610)
This decision affirms the Agency's final decision/action 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 (Z0610)
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
December 5, 2012
__________________
Date
1 To the extent Complainant is not referring to the same dates addressed under Agency Claim No. 4J-480-0057-10.
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0120120843
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120120843