0120160910
03-30-2016
Rusty C.,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
Rusty C.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Western Area),
Agency.
Appeal No. 0120160910
Agency No. 1E-982-0027-15
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated December 7, 2015, 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 Mail Handler at the Agency's Seattle, Washington Network Distribution Center.
On November 2, 2015, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency subjected him to discrimination on the bases of race, color, and in reprisal for prior EEO activity when:
1. on various dates since September 9, 2015 and thereafter, management used the Lead Clerk Craft employee to supervise him and other Mail Handler Craft employees; during pre-complaint processing, and reiterated on appeal, Complainant underscores that the appointed supervisor was in a separate craft, and was from a different bargaining unit;
2. on September 24, 2015, a co-worker directed profane and derogatory remarks at him;
3. on or about September 24, 2015, he requested to file an Office of Workers' Compensation Programs (OWCP) compensation claim, but management did not cooperate, and challenged his claim as not being job-related; and
4. on or about September 29, 2015 and October 1, 2015, management instructed him not to interact with the Lead Clerk and vice-versa, and told him not to enter any of the supervisors' office areas.
In its December 7, 2015 final decision, the Agency dismissed the instant formal complaint pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim, finding Complainant was not aggrieved. Regarding claims 1, 2 and 4, the Agency found that unless the conduct is severe, a single incident or group of isolated incidents will not be considered discriminatory harassment.
In regard to claim 1, the Agency also found that the matter raised therein was a collateral attack on the collective bargaining agreement. The Agency stated that claim 3 constitutes a collateral attack on Department of Labor's OWCP process concerning his OWCP claim request. The Agency stated that Complainant should have raised his allegations through the collective bargaining agreement/negotiated grievance and OWCP process, not through the EEO process.
The instant appeal followed.
ANALYSIS AND FINDINGS
Claims 1 and 3
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 C.F.R. � 1614.103. 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 Agency properly dismissed claims 1 and 3 for failure to state a claim. A fair reading of claim 1, as noted above, reflects Complainant's dissatisfaction that an employee who was purportedly designated a supervisor was from a different craft, and a separate bargaining unit. Claim 1 constitutes a collateral attack on the collective bargaining agreement/negotiated grievance process.
Moreover, a fair reading of claim 3 reflects that it constitutes a collateral attack on the OWCP 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 his challenges to actions which occurred during the collective bargaining agreement/negotiated grievance and the OWCP process is within that process itself.
Accordingly, we affirm the Agency's dismissal of claims 1 and 3.
Claims 2 and 4
A fair reading of his formal complaint shows that Complainant has claimed that he has been subjected to ongoing harassment. On appeal, Complainant states that in October 2015, he notified the Manager that the Lead Clerk "had spoken to me in a challenging manner while attempting to obstruct me access to a phone for purpose of calling a supervisor to the section. Prior to this, on 9/29/15, [Manager] had given both [Lead Clerk] and me specific instructions that we were not to interact or speak with each other in any way. [Manager] threatened to charge me with misconduct if I violated her instruction regarding the Lead Clerk. Not only was [Lead Clerk] allowed to continuing acting as my supervisor after these restrictions were put into place, adding more stress and tension to what was already a hostile work environment for me, but no action or investigation was ever taken into why the Lead Clerk was allowed to interact or question me in conflict with the specific instructions we had both received, or as to why the Lead Clerk had attempted to obstructed my access to a phone."
As a remedy, Complainant requested that the harassment cease, restoration of leave taken for anxiety, and compensatory damages. By alleging a pattern of harassment, Complainant has stated a cognizable claim under the EEOC regulations. See Cervantes v. United States Postal Service, EEOC Request No. 05930303 (November 12, 1993). The details of this alleged pattern of harassment should be developed during the investigation. The Commission has held that "[b]ecause the incidents that make up a hostile work environment claim collectively constitute one unlawful employment practice, the entire claim is actionable, as long, as at least one incident that is part of the claim occurred within the filing period. This includes incidents that occurred outside the filing period that the [Complainant] knew or should have known were actionable at the time of their occurrence." Therefore, the Agency improperly dismissed claims 2 and 4 for failure to state a claim.
Accordingly, the Agency's final decision dismissing claims 1 and 3 was proper and is AFFIRMED. We REVERSE the Agency's final decision dismissing claims 2 and 4, 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 and 4 (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 30, 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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