0120160740
03-15-2016
Roxane C.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Eastern Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Roxane C.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.
Appeal No. 0120160740
Agency No. 1C-371-0039-15
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated November 5, 2015, 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., 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
During the period at issue, Complainant worked as a Mail Handler at the Agency's Memphis, Tennessee Processing and Distribution Center.
On April 23, 2015, Complainant initiated EEO Counselor contact. Informal efforts to resolve her concerns were unsuccessful.
On October 16, 2015, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency subjected her to discrimination on the bases of race, sex, disability, age, and in reprisal for prior EEO activity when:
1. on unspecified dates in October 2013, she was denied overtime opportunities;
2. on March 11, 2015, she was told to work in unsafe conditions and she re-injured her knee;
3. on March 17, 2015, the supervisor hid behind a column and observed her;
4. on March 24, 2015, management attempted to make her work overtime;
5. on March 24, 2015, the supervisor yelled at her; and
6. on an unspecified date, the supervisor controverted her Office of Workers' Compensations Program (OWCP) claim.
In its November 5, 2015 final decision, the Agency dismissed claim 1 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 was on April 23, 2015, which it found to be beyond the 45-day limitation period.
Further, the Agency dismissed claims 2 - 6 pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim, finding that Complainant was not aggrieved. Regarding claims 3 - 5, the Agency noted that Complainant was not disciplined or subjected to any adverse personnel action as a result of the alleged events.
Regarding claims 2 and 6, the Agency found that these claims constitute a collateral attack on Department of Labor's Office of Workers Compensations Program process concerning her OWCP claims. The Agency also determined that the matter raised in claim 2 was a collateral attack on the program administered by Department of Labor's Office of Safety and Health Administration (OSHA). The Agency stated that Complainant should have raised her allegations through the OWCP and OSHA process, not through the EEO process.
The instant appeal followed.
ANALYSIS AND FINDINGS
Claim 1 (untimely EEO Counselor contact)
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.
It is undisputed that Complainant first initiated EEO Counselor contact on April 23, 2015. However, claim 1 concerned denial of overtime opportunities that occurred in October 2013 that occurred approximately one and one-half years before her April 23, 2015 EEO contact. Complainant has not offered adequate justification for an extension of the 45-day regulatory time frame. While she suggests that these events were connected to harassment she alleges occurred in October 2013, we find that the discrete nature of the earlier personnel actions (denial of overtime opportunities) in combination with the long break in time between the latest event in October 2013 and the timely allegations occurring one and one-half years later in March 2015 mitigates against a determination that all these events constituted a single claim of ongoing discriminatory harassment. Moreover, we find that claim 1 is a discrete act not connected to claims 2 - 6. Therefore, we affirm the Agency's dismissal of claim 1 on the grounds of untimely EEO Counselor contact.
Remaining claims (failure to state a claim)
As a threshold matter, we find that the Agency improperly fragmented Complainant's claim of ongoing discriminatory harassment/hostile work environment by dismissing claims 2 - 6 for failure to state a claim. Specifically, the Agency determined that claims 2 and 6 were a collateral attack on the OWCP and OSHA process, and that in regard to claims 3 - 5, Complainant was not aggrieved. A fair reading of her formal complaint, Complainant claimed that she was subjected to a series of related incidents of harassment from March 2015 through present.
In the attachment to the instant formal complaint, Complainant states that she "is certain that [supervisor] has an innate desire to be controlling towards the Black female gender and any non-Caucasian female that shows the ability to be self-sustaining; aggressive in her career; or knowledge of her employer's policies without being submissive...Complainant believes that arrogance contributed to [supervisor] accusation to OWCP of her being belligerent and not injured on the job although Complainant had a witness to the incident. Complainant believes that [supervisor] feels he is above following instruction himself and will not accept when he is wrong by looking for the smallest pebble to throw. [Supervisor] was wrong about the Postal Policy regarding safety on March 11, 2015. This was not the first episode of [supervisor] retaliating against Complainant by attempting to block the OWCP claim."
Regarding claim 2 (which the Agency found addressed an OWCP matter), Complainant expressly detailed the events of March 11, 2015, relating to a power outage, the difficulties for navigating through the work facility in the darkness, and obstacles such as cables and bending straps impeding progress. Complainant indicated that she unsuccessfully brought this matter to the attention of Agency officials. This matter, considering in concert with the other claims, states a justiciable harassment claim. See Cervantes v. USPS, EEOC Request No. 05930303 (November 12, 1993).
Finally, however, to the extent that Complainant claimed that the supervisor controverted an OWCP claim (as identified in claim 6), such matters constitute a collateral attack on the OWCP grievance process. 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 24, 1993). The proper forum for Complainant to have raised her challenges to actions which occurred during the OWCP process is within that process itself.
The Agency's final decision dismissing claim 1 was proper and is AFFIRMED. We REVERSE the Agency's final decision dismissing the remaining claims, defined herein as a harassment/hostile work environment claim), and we REMAND this matter to the Agency for further processing in accordance with the ORDER below.
ORDER (E0610)
The Agency is ordered to process claims 2 - 6 (harassment/hostile work environment) in accordance with 29 C.F.R. � 1614.108 et seq. 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 (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 Complainants 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
March 15, 2016
__________________
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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