Terrell C.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Great Lakes Area), Agency.Download PDFEqual Employment Opportunity CommissionDec 4, 20182019000427 (E.E.O.C. Dec. 4, 2018) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Terrell C.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Great Lakes Area), Agency. Appeal No. 2019000427 Agency No. IJ-531-0045-18 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated August 6, 2018, 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 for the Agency as a Mail Handler Assistant in Palatine, Illinois. On April 16, 2018, Complainant initiated EEO Counselor contact. Informal efforts to resolve his concerns were unsuccessful. On July 18, 2018, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race and sex when: 1. on November 28, 2016, he was injured at work and management did not file an accident report or offer him Continuation of Pay (COP); 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. 2019000427 2 2. on April 20, 2017, he tried to cancel his resignation paperwork, but management would not allow him to; and 3. on or around March 26, 2018, he received a bill from a credit agency regarding his hospital visit in 2016 for his work injury. In its August 6, 2018 final decision, the Agency dismissed claims 1 – 2 for untimely EEO Counselor contact, pursuant to 29 C.F.R. § 1614.107(a)(2). Specifically, the Agency determined that Complainant initiated EEO Counselor contact on April 16, 2018, which the Agency found was more than forty-five days after the alleged discriminatory events occurred. The Agency further dismissed claim 3 for failure to state a claim, pursuant to 29 C.F.R. § 1614.107(a)(1). Specifically, the Agency found that the subject claim is a collateral attack on the Department of Labor’s Office of Workers’ Compensation Programs (OWCP) process. The Agency stated that Complainant should have raised his allegations through the OWCP process, and not through the EEO complaint process. The instant appeal followed. Complainant, on appeal, argues that he was not aware of the 45- day limitation period to initiate EEO Counselor contact. Specifically, Complainant stated that he contacted the EEO hotline when he received his medical bill and that he “was a newly hired employed with less than one year of service.” 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 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 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. 2019000427 3 The alleged discriminatory events occurred on November 28, 2016 and April 20, 2017, but Complainant did not initiate contact with an EEO Counselor until April 16, 2018, well beyond the 45-day limitation period. In his complaint, Complainant claimed that Agency management “failed to put my accident in the EHS system, and submit my medical paperwork to the Department of Labor. I sustained an injury on November 28, 2016 while working on the dock and unloading trucks.” Complainant also claimed that management would not cancel his resignation paperwork “due to my attendance although I mentioned in my pre-D for attendance it was due to my injury and daughter.” Here, we find Complainant had or should have had a reasonable suspicion of discrimination regarding his claims more than 45 days prior to his initial contact with an EEO Counselor. The record contains a copy of the Manager, Distribution Operations’ affidavit dated May 5, 2018, stating that she has been employed in the Agency’s Palatine EEO office since April 2007, and that an EEO poster “has been and is currently displayed on the employee bulletin boards since I have been in this office. This poster advises employees of the time requirements for timely filing an EEO counseling request and the telephone number to contact to request EEO counseling.” Complainant has not presented any persuasive arguments or evidence warranting an extension of the time limit for initiating EEO Counselor contact. See 29 C.F.R. § 1614.604(c). Therefore, the Agency properly dismissed claims 1 – 2 for untimely EEO Counselor contact. Claim 3 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. U.S. Postal Service, EEOC Request No. 05940585 (September 22, 1994); Lingad v. U.S. 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 OWCP process is within that process itself. It is inappropriate to now attempt to use the EEO process to collaterally attack actions which occurred through the OWCP process. The Agency properly dismissed claim 3 for failure to state a claim. The Agency’s final decision dismissing Complainant’s formal complaint for the reasons stated herein 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: 2019000427 4 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. 2019000427 5 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 December 4, 2018 Date Copy with citationCopy as parenthetical citation