0120180240
01-09-2018
Roland T,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Capital Metro Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Roland T,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Capital Metro Area),
Agency.
Appeal No. 0120180240
Agency No. 4K-230-0130-17
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated September 21, 2017, 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 Letter Carrier at the Agency's Station facility in Norfolk, Virginia.
Complainant contacted the EEO Counselor on May 5 and 22, 2017, alleging discrimination. When the matter could not be resolved informally, on August 20, 2017, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (Caucasian), sex (male), color (White), disability, age (59), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act of 1967, and Section 501 of the Rehabilitation Act of 1973 when:
1. On December 18, 2016, and during December 2016, Complainant was not asked to work on Sundays;
2. On March 29, 2017, after submitting a leave donation form, Complainant failed to receive a response;
3. On April 17, 2017, he was issued a 7-day suspension, for an incident that occurred on April 1, 2017;
4. On May 12, 2017, Complainant became aware that he was denied Family Medical Leave Act (FMLA) coverage;
5. On May 20, 2017, Complainant was issued 14-day no-time-off suspension dated May 20, 2017, for failure to follow instructions; and
6. On or about March 31, 2017, while on union time, the Station Manager instructed you to stop your efforts in attempting to obtain information on black coworkers who were required to work on Sundays, and the union steward also refused to assist you with your grievance.
The Agency dismissed claims (1), (2), and (3) pursuant to 29 C.F.R. �1614.107(a)(2) for untimely EEO Counselor contact. The Agency noted that these events occurred on December 18, 2016, March 29, 2017, and April 17, 2017. However, the Agency noted that Complainant contacted the EEO Counselor on June 15, 2017. The Agency held that these events occurred outside of the 45-day time limit.
The Agency then dismissed claim (4) pursuant to 29 C.F.R. �1614.107(a)(1) for failure to state a claim. The Agency noted that Complainant alleged discrimination based on the denial of FMLA. The Agency held that such a claim constituted a collateral attack which is not properly raised in the EEO complaint process. In addition, the Agency dismissed claim (6) for failure to state a claim noting that Complainant was using the EEO complaint process to allege an attack on the union grievance process.
The Agency turned to claim (5). The Agency indicated that Complainant challenged the suspension through the grievance process. The grievance was settled by the parties at Formal Step A of the grievance procedure on July 7, 2017, which rescinded the no-time-off suspension dated May 20, 2017, in its entirety. As such, the Agency found that the suspension was rescinded from all of Complainant's records and Complainant did not shown any tangible harm. Accordingly, the Agency dismissed claim (5) pursuant to 29 C.F.R. �1614.107(a)(1) for failure to state a claim and 29 C.F.R. �1614.107(a)(5) for mootness.
Complainant appealed noting that the Agency's dismissal based on untimeliness was in error for he contacted the EEO Counselor as early as May 5, 2017, regarding these events. Further, Complainant argued that the EEO process has jurisdiction over clams (4) and (6). Finally, as to claim (5), Complainant asserted that the matter is not moot for he has no assurance that the action will not reoccur. As such, Complainant argued that the Agency's dismissal action should be reversed. The Agency asked that we affirm its decision.
ANALYSIS AND FINDINGS
Failure to State a Claim
EEOC Regulation 29 C.F.R. �1614.107(a)(1) provides for the dismissal of a complaint which fails to state a claim within the meaning of 29 C.F.R. �1614.103. To establish standing initially under 29 C.F.R. �1614.103, a complainant must be either an employee or an applicant for employment of the agency against which the allegations of discrimination are raised. In addition, the claims must concern an employment policy or practice which affects the individual in his or her capacity as an employee or applicant for employment. 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; �1614.106(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. Dep't 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 Wills v. Dep't of Def., EEOC Request No. 05970596 (July 30, 1998); Kleinman v. U.S. Postal Serv., EEOC Request No. 05940585 (Sept. 22, 1994); Linpad v U.S. Postal Serv., EEOC Request No. 05930106 (June 25, 1993).
In claim (4), Complainant alleged discrimination with respect to his denial of FMLA. The proper forum for Complainant to have raised his challenges to his FMLA eligibility was through the Department of Labor's FMLA enforcement procedures. It is inappropriate to now attempt to use the EEO process to collaterally attack actions related to her eligibility for FMLA. A claim that can be characterized as a collateral attack, by definition, involves a challenge to another forum's proceeding, such as the grievance process, the workers' compensation process, an internal agency investigation, or state or federal litigation. See Fisher v. Dep't of Def., EEOC Request No. 05931059 (July 15, 1994). Therefore, we cannot address Complainant's claim (4) to the extent Complainant has alleged that the Agency's actions were improper under FMLA.
Further, in claim (6), Complainant asserted discrimination while working on union time, he was denied assistance by the Station Manager regarding his efforts regarding a grievance regarding Sunday assignments. Upon review, we find that Complainant alleged discrimination regard his work involving a union grievance. The EEO process is not the proper forum for Complainant to have raised this challenge. As Complainant is challenging actions directly related to his position within the union, he must raise this claim within the union grievance process. Therefore, we affirm the Agency's dismissal of claim (6).
Mootness
As to claim (5), Complainant alleged discrimination when he was issued a 14-day suspension. Complainant filed a grievance on this action and the parties agreed to rescind the suspension. The Agency dismissed the claim on the basis of failure to state a claim and mootness. Upon review, we find that Complainant clearly stated a claim. As such, we shall only review the Agency's dismissal of clam (5) pursuant to 29 C.F.R. �1614.107(a)(5) for mootness.
EEOC Regulation 29 C.F.R. �1614.107(a)(5) provides that the Agency shall dismiss a complaint that is moot. To determine whether the issues raised in Complainant's complaint remain in dispute, it must be ascertained (1) if it can be said with assurance that there is no reasonable expectation that the alleged violation will recur, and (2) if the interim relief or events have completely and irrevocably eradicated the effects of the alleged violations. See County of Los Angeles v. Davis, 440 U.S. 625 (1979). When such circumstances exist, no relief is available and no need for a determination of the rights of the parties is presented.
A fair reading of Complainant's formal complaint reflects a claim for compensatory damages. Should complainant prevail in his claim regarding being issued a 14-day suspension (even rescinded in the grievance process), the possibility of an award of compensatory damages exists, and Complainant's claim is not moot. See Glover v. U.S. Postal Serv., EEOC Appeal No. 01930696 (Dec. 9, 1993). Therefore, we find that the Agency's dismissal of claim (5) was not appropriate.
Untimeliness
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. Dep't of the Navy, EEOC Request No. 05970852 (Feb. 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 he was not notified of the time limits and was not otherwise aware of them, that he did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence he was prevented by circumstances beyond his control from contacting the Counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission. Ellis v. United States Postal Serv., EEOC Request No. 01992093 (Nov. 29, 2000).
The Agency dismissed claims (1), (2), and (3) pursuant to 29 C.F.R. � 1614.105(a)(1). These events occurred on December 18, 2016, March 29, 2017, and April 17, 2017, respectively. The Agency indicated that Complainant contacted the EEO Counselor on June 15, 2017. Based on our review of the record, we find that Complainant's first date of contact was May 5, 2017. This is based on Complainant's pre-complaint form dated May 5, 2017. In addition, the EEO Counselor stated in the Counselor's Report that Complainant made contact on May 5, 2017 and May 22, 2017. Based on Complainant's contact on May 5, 2017, we find that claims (2) and (3) were raised in a timely manner and the Agency's dismissal of these claims was not appropriate.
As for claim (1), Complainant alleged discrimination in December 2016. Based on the allegation raised in claim (6), Complainant was aware of the situation of Sunday work assignments. Complainant did not bring this issue to the EEO Counselor until May 2017. Further, Complainant has not shown how the assignments were connected to claims (2) and (3) involving leave donation and a 7-day suspension. As such, we conclude that claim (1) was raised outside of the 45-day time limit and the Agency's dismissal is affirmed.
CONCLUSION
The Agency's decision dismissing claims (1), (4) and (6) is AFFIRMED. However, the decision dismissing claims (2), (3), and (5) is REVERSED and these claims are REMANDED in accordance with the ORDER below.
ORDER (E1016)
The Agency is ordered to process the remanded claims, namely claims (2), (3), and (5) 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
January 9, 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.
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