[Redacted], Shakia H, 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency.Download PDFEqual Employment Opportunity CommissionAug 17, 2021Appeal No. 2021003653 (E.E.O.C. Aug. 17, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Shakia H,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. Appeal No. 2021003653 Agency No. 4G-330-0078-21 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated April 21, 2021, dismissing a formal 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. BACKGROUND During the period at issue, Complainant worked as a City Carrier at the Agency’s Chapel Lakes Post Office in Pembroke Pines, Florida. On March 26, 2021,2 Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of race (African- American) and in reprisal for prior protected EEO activity (prior EEO cases). In its final decision, dated April 21, 2021, the Agency framed Complainant’s claims in the following fashion: 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 In its final decision, the Agency lists May 26, 2021 as the date Complainant filed her formal complaint. The record, however, reflects Complainant filed her formal complaint on March 26, 2021. 2 2021003653 1. On or around November 2, 20203, [Complainant] received a Letter of Demand for Indebtedness; 2. On December 4, 2020, a manager gave [her] a suspicious looking envelope that she said had [her] name on it; 3. On December 8, 2020, [she] became aware that management did not adhere to a grievance settlement involving medical documentation and [her] clock rings. The Agency dismissed claim (1), the Letter of Demand for Indebtedness, for failure to state a claim reasoning that this matter was a collateral attack on the Debt Collection Act. The Agency dismissed claim (2) for failure to state a claim, reasoning that this incident did not set forth an actionable claim of harassment. In addition, the Agency’s final decision found that under the basis of reprisal, the alleged incident in claim (2) is not reasonably likely to deter Complainant or others from engaging in protected EEO activity. Finally, the Agency dismissed claim (3), that the Agency did not adhere to a grievance settlement, for failure to state a claim reasoning that this matter was a collateral attack on the grievance process. The instant appeal followed. On appeal, Complainant asserts that the Agency did not address her claim that a named management official made false allegations regarding Complainant’s route inspections in affidavits. Finally, Complainant asserts that are various errors in the dates set forth in the complaint file. ANALYSIS AND FINDINGS The Agency properly dismissed claim (1), the Letter of Demand of Indebtedness, for failure to state a claim. An employee cannot use the EEO complaint process to lodge a collateral attack on another proceeding. See Wills v. Department of Def., EEOC Request No. 05970596 (July 30, 1998); Kleinman v. United States Postal Serv. EEOC Request No. 05940585 (September 22, 1994); Lingad v. United States Postal Serv., EEOC Request No. 05930106 (June 25, 1993). A collateral attack is defined as involving a challenge to another forum's proceeding. See Phyllis G. v. U.S. Postal Serv., EEOC Appeal No. 2019003456 (July 19, 2019). The Debt Collection Act, 31 U.S.C. § 3711 et seq., mandates that monetary disputes involving an agency of the United States government and any claimed debtor must be resolved through the provisions of the Debt Collection Act. Therefore, the proper forum for Complainant to have raised her challenge is under the Debt Collection Act process. The Commission's regulations do not convey it with jurisdiction to decide matters covered by the Debt Collection Act. See Amato v. Dep’t of the Army, EEOC Request No. 0520070240 (July 18, 2007); Emelda F. v. U.S. Postal Serv., EEOC Appeal No. 2019001020 (April 5, 2019). 3 On appeal, Complainant states that he did not list November 2, 2020 as the date he became aware of the indebtedness. 3 2021003653 The Agency properly dismissed claim (2) for failure to state a claim. Complainant alleges that a management official handed her an envelope which had “Postmaster” written on it, and told Complainant the envelope was for her. Complainant asserts the envelope did not have her name on it and that the management official was trying to commit “mail tampering and fraud” against her. 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. The Court explained that an "objectively hostile or abusive work environment [is created when] a reasonable person would find [it] hostile or abusive:” and the complainant subjectively perceives it as such. Harris, supra at 21-22. 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, 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. We find that the alleged incident as set forth by Complainant is not sufficiently severe or pervasive to set forth an actionable claim of harassment. In addition, regarding the basis of reprisal, we find that the alleged incident is not reasonably likely to deter Complainant or others from engaging in protected activity. The Agency also properly dismissed claim (3), that management did not adhere to a grievance settlement, for failure to state a claim. This matter is a collateral attack on the grievance process. To the extent Complainant is alleging that the Agency failed to adhere to a grievance settlement, we find that this is a collateral attack on the grievance process.4 The proper forum for Complainant to raise this challenge is within the negotiated grievance process and not the EEO complaint process. Finally, Complainant, on appeal, alleges that the Agency failed to address, in its final decision, her claim that a named manager made false statements in affidavits regarding route inspections. The record reflects that Complainant raised this claim during EEO Counseling. The record contains an affidavit from the named manager, regarding route inspections, for a prior EEO case for Complainant, Agency Case. No. 4G-330-0051-19, EEOC Hearing No. 510-2019-00400X, which is currently pending before an EEOC Administrative Judge (AJ). Thus, Complainant raises a claim regarding the actions and testimony of a manager during the processing of the prior EEO complaint. It is appropriately viewed as a “spin-off complaint” subject to dismissal under 29 C.F.R. § 1614.107(a)(8). Complainant should raise any claims regarding the processing of her prior EEO complaint or the actions and testimony of individuals while that prior EEO complaint is being processed, such as with the EEOC Administrative Judge, and not in a new complaint. According to EEOC's Management Directive (MD-110) at Ch. 5, IV, D, claims of improper handling should be processed as part of the underlying complaint, and not as an independent claim. 4 The record contains a Step B Decision dated December 8, 2020 pertaining to a grievance for Complainant. 4 2021003653 If a final Agency decision is issued on a complaint where a complainant has an issue with its processing, he or she may also raise the concerns in an appeal. We AFFIRM the Agency’s final decision dismissing the formal complaint for the reasons discussed above. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. 5 2021003653 Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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 (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 August 17, 2021 Date Copy with citationCopy as parenthetical citation