0120100466
05-26-2011
Renee Tyler, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Capital Metro Area), Agency.
Renee Tyler,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Capital Metro Area),
Agency.
Appeal No. 0120100466
Agency No. 1K-206-0012-09
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
final decision dated September 29, 2009, 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. § 791 et seq.
BACKGROUND
During the period at issue, Complainant was employed as a Flat Sorter
Machine Operator, PS-06, at the Agency’s Southern Maryland Processing &
Distribution Center in Capitol Heights, Maryland.
On February 16, 2009, Complainant initiated EEO Counselor contact.
Informal efforts to resolve her concerns were unsuccessful. Subsequently,
Complainant filed the instant formal complaint on June 6, 2009. Therein,
Complainant alleged that the Agency subjected her to discrimination on
the bases of disability and in reprisal for prior EEO activity when:
1. on April 5, 6, 7, 12 and 17, 2008, she was scheduled Absent Without
Leave (AWOL);
2. on April 13, 2009, management informed her that she was scheduled
Leave Without Pay (LWOP) in December 2008;
3. on an unspecified date, the Agency has delayed the filing of her
compensation paperwork (CA-7); and
4. on an unspecified date, the Agency did not notify Minneapolis or North
Carolina in a timely manner, to prepare her PS Form 50 for placement in
LDC Code 67, subsequently affected the computation of her retirement.1
In its September 29, 2009 final decision, the Agency dismissed claims 1
- 2 on the grounds of untimely EEO Counselor contact, pursuant to 29
C.F.R. § 1614.107(a)(2). The Agency determined that Complainant’s
initial EEO Counselor contact occurred on February 16, 2009, which it
found to be beyond the 45-day limitation period. Specifically, the Agency
determined that Complainant did not initiate EEO contact until February
16, 2009 which was approximately 317 days after the beginning of the
first incident identified in claim 1 on April 5, 2008 and approximately
305 days after the end of the first incident identified on April 17,
2008; and 48 days after the second incident on December 30, 2008.
The Agency further noted in the instant complaint, Complainant stated
that on April 5, 6, 7, 12 and 17, 2008, she was scheduled AWOL and that in
December 2008, she was scheduled LWOP. The Agency noted that Complainant
stated that on April 13, 2009, an Agency official notified her that she
was scheduled LWOP in December 2008, it was reasonably assumed that when
she received her pay stub in December 2008, she would have realized
that she was charged AWOL for that time period. The Agency determined
that in April 2008 and December 2008, when Complainant alleged she was
scheduled AWOL that should have triggered her to file her complaint.
Moreover, the Agency found that the EEO posters were on display in
Complainant’s workplace that contained the 45-day limitation period.
Further, the Agency dismissed claims 3 - 4 pursuant to 29 C.F.R. §
1614.107(a)(1) for failure to state a claim, finding that these claims
constituted a collateral attack on other proceedings.
CONTENTIONS ON APPEAL
On appeal, Complainant argues that the Agency’s dismissal of claims
1 – 2 is “erroneous and groundless, if not unintelligible.”
Regarding claim 1, Complainant argues that she assumed “at the time,
as any reasonable person would, that the LWOP recorded in the relevant
pay periods (08 08, 09 08, and 10 08) were reflective of the hours she
took off under the Workers’ Compensation program.” Complainant
stated that at that time, there was no indication that any of the LWOP
hours charged were in fact charged as AWOL – the fact which Complainant
discovered on April 13, 2009 when she obtained the TAC report.”
Regarding claim 2, Complainant argues that she was never notified of the
December 2008 LWOP during the relevant period while she was on leave
of absence. Complainant further argues that the TAC report which she
received on April 13, 2009 “was the only means by which Complainant
discovered the charge of LWOP – ‘Suspension Pending Termination.’
Therefore, Complainant’s EEO contact on May 5, 2009 on this issue
was timely.”
Furthermore, Complainant argues that claims 3 – 4 “do not involve
dispute on any determinations rendered by OWCP or OPM. They simply
involve Agency’s failure to timely and properly submit the appropriate
paperwork to OWCP and OPM respectively.”
ANALYSIS AND FINDINGS
Claims 1 - 2
EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the Equal Employment
Opportunity Counselor within forty-five (45) days of the date of the
matter alleged to be discriminatory or, in the case of a personnel
action, within forty-five (45) days of the effective date of the action.
The Commission has adopted a "reasonable suspicion" standard (as opposed
to a "supportive facts" standard) to determine when the forty-five (45)
day limitation period is triggered. See Howard v. Department of the Navy,
EEOC Request No. 05970852 (February 11, 1999). Thus, the time limitation
is not triggered until a Complainant reasonably suspects discrimination,
but before all the facts that support a charge of discrimination have
become apparent.
EEOC Regulations provide that the Agency or the Commission shall extend
the time limits when the individual shows that she was not notified of the
time limits and was not otherwise aware of them, that she did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence she was prevented
by circumstances beyond her control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the Agency
or the Commission.
The alleged discriminatory events occurred on April 5, 6, 7, 12 and 17,
2008 and in December 2008, but that Complainant did not initiate contact
with an EEO Counselor until February 16, 2009, well beyond the 45-day
limitation period. Complainant waited approximately 317 days after the
beginning of the first incident in claim 1 and approximately 305 days
after the end of the first incident cited on April 5, 2008 and 305 days
after the end of the first incident cited on April 17, 2008. Moreover,
the record reflects that the initial EEO contact was approximately 48 days
after the second incident on December 30, 2008. We find that Complainant
had or should have had a reasonable suspicion of discrimination regarding
claims 1 - 2 more than 45 days prior to her initial contact with an
EEO Counselor. Therefore, we find that the Agency properly dismissed
claims 1 – 2 for untimely EEO Counselor contact.
Claims 3 - 4
The regulation set forth at 29 C.F.R. § 1614.107(a)(1) provides, in
relevant part, that an agency shall dismiss a complaint that fails to
state a claim. 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). The Commission has held that an employee
cannot use the EEO complaint process to lodge a collateral attack on
another proceeding. See e.g. Collins v. United States Postal Service,
EEOC Appeal No. 0120072113 (June 8, 2007).
Regarding claim 3, the proper forum for Complainant to have raised her
challenges to actions which occurred during the OWCP proceeding was
at that proceeding itself. The EEOC is not the proper forum to raise
a challenge for the delay in the filing of her compensation paperwork
(CA-7). The Commission has no jurisdiction over such matters. The proper
forum for Complainant to have raised her challenges regarding the OWCP
process is with the Department of Labor, not the EEOC. See Nobis
v. United States Postal Service, EEOC Appeal No. 0120081269 (March
20, 2008) (dismissing a denial of COP claim as a collateral attack
and therefore one that fails to state an actionable claim); Estrada
v. Department of Agriculture, EEOC Appeal No. 0120071677 (May 17, 2007),
request to reconsider denied, EEOC Request No. 0520070724 (November 5,
2007), (dismissing a forged CA-1 claim for being a collateral attack).
Therefore, we find that the Agency properly dismissed claim 3 for failure
to state a claim.
Regarding claim 4, we find that issue surrounding the Agency not notifying
Minneapolis or North Carolina in a timely manner and preparing her
PS Form 50 for placement in LDC Code 67 which subsequently affected
the computation of her retirement constitutes a collateral attack on
the Office of Personnel Management (OPM) process. The proper forum
for Complainant to have raised her challenges to actions involving her
retirement is within that proceeding itself. See Walker v. United States
Postal Service, EEOC Appeal No. 01A20425 (April 3, 2022) (employees’
EEO challenge to their disability retirement award constituted an
impermissible collateral attack on actions taken by OPM during the
disability retirement process). Based on the foregoing, we find that
claim 4 fails to state a claim within the purview of the regulations.
Moreover, the alleged Agency action was not of a type reasonably likely
to deter Complainant or others from engaging in protected activity.
We therefore AFFIRM the Agency’s dismissal of claims 1 – 2 on the
grounds of untimely EEO Counselor contact and claims 3 – 4 for failure
to state a claim.
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 (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 (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
May 26, 2011
__________________
Date
1 For ease of reference, the Commission has numbered the claims as claims
1 – 4. Moreover, the record reflects that claims 3 – 4 were later
amended to the instant formal complaint.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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