0120181045
05-31-2018
Preston B,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Western Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Preston B,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Western Area),
Agency.
Appeal No. 0120181045
Agency No. 4E852023217
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision (Dismissal) dated January 12, 2018, dismissing his 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a City Letter Carrier, Q-2, at the Agency's Highland Post Office facility in Albuquerque, New Mexico. On December 19, 2017, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (African-American), sex (male), color (Not Specified), disability (Not Specified), age (49), and reprisal for prior protected EEO activity under an EEO statute that was unspecified in the record when:
1. On or about August 19, 2017, the Agency did not raise Complainant's pay to the correct amount to reflect his promotion;
2. On October 18, 2017, management posted a PS Form 3971 in Complainant's work area stating he was 3 hundredths of a minute late;
3. On November 21, 2017, during a REDRESS meeting, the Agency's counsel made negative comments to Complainant's representative and during the same meeting Complainant's boss [sic] asked to see Complainant's socks and directed Complainant's supervisor to nitpick the color of Complainant's postal shirt;
4. On or about December 13, 2017 the Agency refused to rectify Complainant's back-pay issue.
The Agency dismissed claim 1 on the grounds that Complainant had previously chosen to file the same claim before the Merit Systems Protection Board (MSPB). The Agency next found that claim 3 failed to state a claim on the grounds that comments made during settlement discussions could not form the basis of a complaint. With regard to claim 4, the Agency found that the matter constituted a collateral attack on the grievance process. Finally, with regard to claim 2, the Agency found that the action complained of was insufficiently severe and/or pervasive to constitute harassment.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.107(a)(4) provides that an agency shall dismiss a complaint where the complainant has raised the matter in an appeal to the MSPB and 29 C.F.R. � 1614.302 indicates that the complainant has elected to pursue the non-EEO process. EEOC Regulation 29 C.F.R. � 1614.302(b) provides that an aggrieved person may elect to file a mixed case EEO complaint with an agency pursuant to 29 C.F.R. Part 1614, or a mixed case appeal on the same matter with the MSPB, pursuant to 5 C.F.R. �1201.151, but not both. In the instant case, the record shows that Complainant filed a mixed case appeal with the MSPB on or about September 22, 2017, alleging that on September 2, 2017 he was involuntarily reduced twice in grade. In his mixed case appeal, Complainant included a copy of his Earnings Statement for the period from August 19 to September 1, 2017 and a copy of a Notification of Personnel Action Form showing his grade change, effective August 19, 2017. We therefore agree with the Dismissal that claim 1 of the instant complaint addresses the same matter as Complainant's MSPB mixed case appeal. As the MSPB appeal was filed on or about September 22, 2017 and his EEO complaint on the same matter was not filed until December 19, 2017, we find that the Agency correctly dismissed the claim pursuant to 29 C.F.R. � 1614.107(a)(4).
On appeal, Complainant contends that the matters were not the same and that the:
[S]ole issue that was addressed in the MSPB appeal was a USERRA violation based on military service and not 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) and Age Discrimination in Employment Act of 1967 (ADEA).
We note initially that Complainant alleged in his MSPB mixed case appeal Form 185 that the same treatment "didn't happen to other non-disabled employee[s]." Even assuming such wording does not constitute a discrimination claim under the Rehabilitation Act, a claim of discrimination could have been addressed with the MSPB, which is sufficient for purposes of � 1614.107(a)(4). Complainant, therefore, is precluded from contesting the matter of his pay in the present EEO complaint. See Aho v. Department of Agriculture, EEOC Request No. 05860085 (May 22, 1987)(What matters for purposes of dismissing a claim previously filed with the MSPB is not whether or not the complainant alleged discrimination before the MSPB but whether or not the complainant could have done so).
Complainant next argues that the MSPB dismissed2 the appeal for lack of jurisdiction, and we note that the Agency has not disputed this. We note further that, pursuant to 29 C.F.R. � 1614.302(b), if the MSPB "dismisse[s] the appeal for jurisdictional reason, the agency shall promptly notify the individual in writing of the right to contact an EEO Counselor within 45 days of receipt of this notice and to file an EEO complaint, subject to � 1614.107." We therefore take this opportunity to remind the Agency if its obligations under � 1614.302(b), and accordingly remand this claim for further processing.
With regard to claim 4, the Agency found that the claim constituted an impermissible collateral attack on the MSPB 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); Lingad v. United States Postal Service, EEOC Request No. 05930106 (June 25, 1993). The Agency found that the proper forum for Complainant to raise his challenges to any refusal by the Agency to act on a matter decided by or pending before the MSPB is generally within that proceeding itself. We find, however, that claim 4 and claim 1 are the same claim, with claim 4 merely alleging that by December 13, 2017, the Agency still had not rectified the alleged wrong first identified in claim 1. If Complainant prevails on claim 4, he will gain nothing we would not have gained had he prevailed on claim 1. Accordingly, we find that claim 4 merges with claim 1 and does not state an independently actionable claim.
With regard to claims 2 and 3, we note that an agency shall accept a complaint from any aggrieved employee or applicant for employment who believes that he or she has been discriminated against by that agency because of race, color, religion, sex, national origin, age or disabling condition. 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. Diaz v. Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994). When the complainant does not allege he or she is aggrieved within the meaning of the regulations, the agency shall dismiss the complaint for failure to state a claim pursuant to 29 C.F.R. � 1614.107(a)(1).
In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986), that harassment is actionable if it is sufficiently severe or pervasive to alter the conditions of the complainant's employment. Thus, not all claims of harassment are actionable. Where a complaint does not challenge an agency action or inaction regarding a specific term, condition or privilege of employment, such as the complaint at issue here, a claim of harassment is actionable only if, allegedly, the harassment to which the complainant has been subjected was sufficiently severe or pervasive to alter the conditions of the complainant's employment. Following a review of the record, we find that the actions complained of are simply not severe or pervasive enough to alter the conditions of Complainant's employment. On appeal, Complainant alleges that because of the harassment he incurred "injured feeling, emotional stress, lack of sleep in the form of suffering." We note, however, that the Commission has long held that where an allegation fails to render an individual aggrieved, the complaint is not converted into a cognizable claim merely because complainant alleges physical and/or emotional injury. See Larotonda v. United States Postal Service, EEOC Appeal No. 01933846 (March 11, 1994).
CONCLUSION
The Agency's decision is AFFIRMED IN PART AND REVERSED IN PART. The Agency shall comply with the order as set forth below.
ORDER
To the extent it has not already done so, the Agency is ordered to process the remanded claim 1 in accordance with 29 C.F.R. � 1614.108. The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision was issued. 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 was issued, 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 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 (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
May 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.
2 Neither Complainant nor the Agency included a copy of the MSPB's Dismissal in the record.
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