0120180354
02-02-2018
Sara S,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Pacific Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Sara S,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 0120180354
Agency No. 1F904004517
DECISION
Complainant timely appealed to the Equal Employment Opportunity Commission ("EEOC" or "Commission") from the Agency's October 17, 2017, dismissal of 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
At the time of events giving rise to this complaint, Complainant worked as a Vehicle Operations Assistant (P-06) at the Agency's Los Angeles Network Distribution Center in Bell, California.
On September 12, 2017, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of sex (female), disability (physical), age (56), and reprisal (for her actions taken related to the claims in the instant complaint) when:
1. On February 16, 2017, she was sexually harassed when a coworker ("C1") took a picture of her behind and shared it on social media, and Management failed take appropriate action when she notified them on February 20, 2017;
2. On April 8, 2017, she was issued a Letter of Warning dated April 1, 2017, and;
3. On May 1, 2017, she was instructed to report for an Investigative Interview on May 8, 2017.2
On May 16, 2017, one of Complainant's coworkers ("C1") photographed her from behind, and sent the photo to other employees via text and Snapchat. The Union Steward received the photograph in an email and notified Complainant on February 20, 2017. Complainant immediately reported the incident to her supervisor, the Supervisor, Distribution Operations ("SDO") who addressed the matter with the Manager of Distribution Operations ("MDO"). According to Complainant, both SDO and MDO agreed that they recognized her in the photograph, as did the Union Steward. SDO and MDO state in the record that the only way they identified Complainant was because she identified herself in the photograph.
Complainant alleges that SDO and MDO did not take any action. She further alleges that C1 was one of SDO's "favorites" and that SDO once stated that she was MDO's "right hand man and he will do anything she says." MDO states that he did take action on unspecified dates by separating Complainant and C1. First he moved Complainant to another area of the facility, and then to another building as the investigation progressed. Based on the EEO Counselor's July 28, 2017 inquiry with MDO, his investigation was "ongoing" and disciplinary action would be contemplated once the investigation was complete.
Although she did not initiate her EEO complaint until June 29, 2017, Complainant describes how she engaged in protected EEO activity by following up with SDO and MDO after her initial contact on February 20, 2017, in February and March about the status of their investigation, and requesting that they take action to keep C1 away from her. Complainant also initiated a grievance on April 27, 2017. Complainant also requested, and was eventually granted reassignment. On appeal, Complainant alleges that the investigator assigned to her grievance, not MDO, arranged her reassignment so that she would be separated from C1. Even after the reassignment, Complainant describes a feeling of paranoia and anxiety manifesting in physical symptoms such as increased migraine headaches.
Complainant alleges that SDO retaliated against her "by using [Complainant's] attendance as a ploy to scare and intimidate [Complainant] from furthering [a sexual harassment] investigation." SDO issued the April 1, 2017 Letter of Warning, which identifies 10 eight hour shifts between January 5, 2017 and March 11, 2017 when Complainant took unscheduled leave, along with two instances of unscheduled leave for 2 hours and 0.48 hours. The Letter recounts a March 30, 2017 investigative interview conducted by SBO, where Complainant, with her Union representative present, stated that she understood why she received the Letter, and was asked to explain each absence. The Letter of Warning stated that Complainant's explanations, which were primarily health related, had been found unsatisfactory, and explained that further disciplinary action would be taken if Complainant did not maintain a regular schedule.
The May 1, 2017 "Letter of Inquiry" referenced Complainant's "continued absence from work" and requested that she attend an investigative interview on May 8, 2017. The letter also described the type of evidence that would be accepted to excuse a medical absence.
The Agency dismissed Complainant's complaint pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely EEO Counselor contact.
ANALYSIS AND FINDINGS
Untimely EEO Contact
In relevant part, 29 C.F.R. �1614.107(a)(2) states that the agency shall dismiss a complaint or a portion of a complaint that fails to comply with the applicable time limits contained in �1614.105. Under �1614.105(a)(1), an aggrieved person must initiate contact with an EEOC Counselor within 45 days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within 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 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. (Complainant v. United States Postal Serv., EEOC Appeal No. 0120120499 (Apr.19, 2012))
In this case, the most recent of the alleged discriminatory actions occurred on May 1, 2017, but Complainant did not initiate contact with an EEO Counselor until June 29, 2017, more than 45 days later. Additionally, the Agency provided evidence that reasonable suspicion existed for each of Complainant's claims more than 45 days before she contacted an EEO Counselor.
For Claim 1, Complainant provides multiple statements that show reasonable suspicion of discrimination by C1 existed on February 20, 2017, when she found out about the photograph of her behind, which C1 took and showed to coworkers via social media on February 16, 2017. On appeal, Complainant demonstrates that she immediately interpreted C1's action as sexual in nature, describing C1 as a "known lesbian," who "stalked" her. The record also reflects that reasonable suspicion of discrimination by Management, for its alleged failure to properly address Complainant's allegations about C1, existed prior to March 6, 2017. The record contains a "Second Letter of Hardship" dated March 6, 2017, written by Complainant to the Plant Manager, requesting a different tour of duty. She explains that she was illegally photographed, as alleged in Claim 1, and upon learning of the photograph, she "immediately felt violated, stalked, and disrespected" (emphasis added). Complainant also explained that she felt "very uncomfortable around [C1] and [did] not want [C1] around [her] at all." Grievance documents written by Complainant indicate that she made her first request to change tours to MDO on February 21, 2017, and "nothing happened." Complainant also pursued the matter through the negotiated grievance process (Grievance No. F15C1FC17558889) on or about April 27, 2017, where she expressly identified the same allegations raised in Claim 1 as "sexual harassment" and described both C1 and Management's alleged actions (or inactions) in abundant detail.
For Claims 2 and 3, the record supports that Complainant had reasonable suspicion of discrimination at the time of the alleged discriminatory act described in each claim, beyond the 45-day limitation period for contacting an EEO Counselor. The alleged discriminatory act in Claim 2, the April 1, 2017 Letter of Warning, signed by Complainant and SDO on April 8, 2017, followed a March 30, 2017 Investigative Interview, and states that it is an "official disciplinary letter of Warning," for Complainant's "failure to maintain regular attendance." The record contains grievance paperwork written by Complainant, which disputes the Letter of Warning, dated April 28, 2017. Among other things, Complainant argued that SDO was using her attendance as a method of retaliation for alleging sexual harassment. Based on Complainant's assertions in Claim 2, we find reasonable suspicion existed for Claim 3, the May 1, 2017 Letter of Inquiry, which is related to Complainant's attendance.
Complainant's efforts to obtain a resolution through the grievance process and through her supervisors directly, occurred within 45 days of the alleged discriminatory actions, yet Complainant did not contact an EEO Counselor during this time frame. On appeal, Complainant does not offer any explanation for the untimely contact. We find Complainant's documented efforts to address what she described as "sexual harassment" are not only evidence that Complainant had reasonable suspicion of discrimination, but also an indication that Complainant was capable of contacting an EEO Counselor within the 45-day limitation period.
New Claims Raised on Appeal
On appeal, Complainant appears to describe new incidents of harassment by SDO and others that are not included in her Formal Complaint. We also note that Claim 3 describes a proposed action, without alleging any following concrete disciplinary action. However, Complainant did not include claims in her formal complaint, so they will not be adjudicated in this decision.
If Complainant intended to raise new harassment and retaliation claims in an EEO complaint, then she must contact an EEO Counselor pursuant to 29 C.F.R. � 1614.105. See Hall v. United States Postal Serv., EEOC Appeal No. 0120031342 (Apr. 24, 2003).
Dissatisfaction with EEO Investigation
Allegations of dissatisfaction with an agency's processing of a previously filed or pending complaint cannot be the subject of an EEO complaint. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), Ch. 5, IV.A.12 and IV.D (Aug. 3, 2015); Morris v. Dep't of Def., EEOC Request No. 0520130316 (Aug. 27, 2013) Our guidance further provides that complaints about the processing of existing complaints should be referred to the agency official responsible for complaint processing, and/or processed as part of the original complaint. If no action was taken, the file must contain an explanation of the Agency's reason(s) for not taking any action. EEO MD-110, supra.
Complainant focuses much of her appeal on her dissatisfaction with the processing of her complaint. Specifically, she describes dissatisfaction with mediation and the quality of the EEO investigation, alleging, among other things, that the EEO Counselor's "investigative report and closing conclusions all lies and discriminatory facts to hide the truth." Such allegations constitute a "spin-off" complaint, and cannot be addressed in this decision. However, Complainant described her concerns in a cover letter timely accompanying her formal complaint, submitted to the Agency's Regional Office. Based on our review of the complaint file, it does not appear that the agency official responsible for complaint processing was identified to Complainant, nor was she advised of the process for reporting her concerns about the processing of her complaint. Therefore, we find Complainant raised a timely allegation of dissatisfaction of the processing of a pending EEO Complaint, and that her allegations were not properly addressed by the Agency.
CONCLUSION
Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED.
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 (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
February 2, 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.
2 Complainant's Formal Complaint did not articulate Claims 2 and 3, but instead alleged that Complainant "was discriminated against on the job by [SDO] because of [her] age and dress attire" and that she was retaliated against by SDO based on her attendance. The Formal Complaint also stated, in reference to C1, that "[t]he lady who harassed and stalked [Complainant] is still fully employed." We presume that Claims 2 and 3 are the Agency's framing of Complainant's retaliation claim, as both concern actions taken by SDO related to her attendance. There is no evidence that the Agency requested specification from Complainant on the stalking allegation, or the alleged harassment by SDO. On appeal, Complainant reiterates the allegations in her Formal Complaint, however, when she was provided an opportunity to dispute the Agency's framing of her complaint in its Letter of Acceptance, she did not do so. As a result, the EEO investigation and the Final Agency Decision were based on the claims as framed by the Agency. Therefore, our analysis will be limited to the claims as stated, and Complainant's additional allegations in her Formal Complaint are considered waived.
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