0120161279
06-08-2016
Zenobia K.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Zenobia K.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Southern Area),
Agency.
Appeal No. 0120161279
Agency No. 4G320001816
DECISION
Complainant timely appealed to this Commission from the Agency's February 9, 2016 dismissal of her complaint of unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq., Section 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Lead Sales and Services Associate (P7-7) at the Agency's Downtown Station in Panama City, Florida.
On January 25, 2016, Complainant filed a formal complaint alleging that the Agency subjected her to harassment and discrimination on the bases of race (black), sex (female), disability (mental), age (53), and reprisal for prior protected EEO activity when:
1. On October 9, 2015 and on an ongoing and daily basis, the Station Manager ("SM"), performs "Clerk Craft Work," and prevents Complainant from performing all of her duties, violating arbitration awards and grievances;
2. On unspecified dates, other employees ignore her instructions, which include taking her place at the window so that she can tend to her other job responsibilities;
3. On unspecified dates, her coworkers reported her to SM when she leaves the window to tend to other job responsibilities; and
4. On unspecified dates, she is monitored on and off the job.
As a Lead Sales and Services Associate ("LSSA"), Complainant's duties encompass working at the window, along with responsibilities require time away from the window, such as training other clerks, making change and providing supplies for the window section, and tracking and recording inventory. Complainant is also the Stamp Custodian, which requires time away from the window to receive stamp deliveries and record and account for stamps in the inventory. Complainant alleges that SM singles her out monitoring her and restricting her job duties to the window so that unlike the other clerks, she is unable to tend to her other responsibilities as both LSSA and Stamp Custodian.
Complainant raised similar allegations about SM in multiple grievances between May 2013 and August 2015. During this time frame, the Agency and the American Postal Workers Union, of which Complainant is a member, were engaged in arbitration over the Union's assertion that the supervisors and postmasters in the Agency's small offices routinely breach the Collective Bargaining Agreement ("CBA") between the parties, by performing Clerk Craft Work in excess of the limit allowed in the CBA. According to the numerous clippings submitted by Complainant for the record, the parties entered a settlement agreement on December 5, 2014, which included monetary damages in the amount of 56 million dollars and plans for a simpler process to resolve similar claims against postmasters and supervisors.
Complainant believes she is eligible to receive a portion of the 56 million dollars, which will be distributed to lower level clerks as back pay for lost work opportunities caused by postmasters and supervisors performing Clerk Craft Work. According to Complainant, SM refuses "to abide by any and all Arbitrations Awards, and Grievances concerning her bid job and responsibilities." Among other things, she alleges that SM uses the Agency's retail system and conducts all counts for fixed credits and postal package supplies, which, Complainant alleges are not only Clerk Craft Work, but also her responsibility as LSSA.
The Agency dismissed Complainant's complaint pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.107(a)(1) provides, in relevant part, that an Agency shall dismiss a complaint that fails to state a claim. 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, .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. See Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (April 21, 1994). If complainant cannot establish that s/he is aggrieved, the agency shall dismiss a complaint for failure to state a claim. 29 C.F.R. � 1614.107(a)(1).
Regarding Complainant's allegations of harassment and hostile work environment, it is well established that where a complaint does not challenge an agency action or inaction regarding a specific term, condition, or privilege of employment, the claim of harassment may survive if it alleges conduct that is sufficiently severe or pervasive to alter the conditions of the complainant's employment. See Harris v. Forklift Systems, Inc., 510 U.S. 17, 23 (1993).
Likewise, when reviewing a claim of reprisal, the Commission has stated that adverse actions need not qualify as "ultimate employment actions" or materially affect the terms and conditions of employment to constitute retaliation. Lindsey v. United States Postal Serv., EEOC Request No. 05980410 (Nov. 4, 1999) Instead, claims based on statutory retaliation clauses are reviewed "with a broad view of coverage. Under Commission policy, a complainant is protected from any retaliatory discrimination that is reasonably likely to deter... complainant or others from engaging in protected activity." Maclin v. United States Postal Serv., EEOC Appeal No. 0120070788 (Mar. 29, 2007)
Claims 1, 2, 3, and 4
Complainant is not "aggrieved," per our requirements under � 1614.107(a)(1) because she failed to show that she suffered a harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. See Diaz, supra. Complainant was not subject to disciplinary action for the matters raised in her complaint, and Claims 2, 3, and 4 are too vague to state a claim. As for Claim 1, even though Complainant identifies a harm to the conditions of her employment (being prevented from performing all of her duties as LSSA and Stamp Custodian), we find her allegation concerns a generalized grievance concerning routine work assignments and instructions, insufficient to state a claim of discrimination. See Hayes, v. United States Postal Serv., EEOC Appeal No. 0120090119 (Jun. 29, 2010) (finding complaints about the conduct and management style of a supervisor to be generalized grievances insufficient to state a claim of discrimination); Goines v. Secretary, Dep't of Veterans Affairs, EEOC Appeal No. 01A54108 (July 20, 2006)
With regard to Complainant's allegations of harassment and hostile work environment Even if proven to be true and viewed in a light most favorable to complainant, Complainant's allegations fail to state a claim of a hostile work environment. See Cobb v. Dep't of the Treas., EEOC Request No. 05970077 (Mar. 13, 1997). We have previously found that routine work assignments, instructions, and admonishments do not rise to the level of harassment because they are common workplace occurrences. See Gray v. United States Postal Serv., EEOC Appeal No. 0120091101 (May 13, 2010) Unless it is reasonably established that the common workplace occurrence was somehow abusive or offensive, and was taken in order to harass Complainant on the basis of any of her protected classes, we do not find such common workplace occurrences sufficiently severe or pervasive to rise to the level of a hostile work environment or harassment as Complainant alleges. See Complainant v. Dep't of Veterans Affairs, EEOC Appeal No. 0120130465 (Sept. 12, 2014) Here, the alleged discriminatory acts are not so severe or pervasive as to alter the conditions of the Complainant's employment.
Finally, based on the "broad" standard of review afforded to claims of reprisal, we do not find the alleged discriminatory acts reasonably likely to deter complainant or others from engaging in protected activity. Maclin, supra.; Carroll v. Dep't of the Army, EEOC Request No. 05970939 (Apr. 4, 2000)
Claim 1
Generally, where an Agency successfully demonstrates that a matter fails to state a claim, we decline to examine it further. However, the Agency's alternate (and equally proper) grounds for dismissing Claim 1 concerns an integral aspect of Complainant's complaint that has not been fully addressed; namely the December 5, 2014 settlement agreement.
This 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 Defense, EEOC Request No. 05970596 (July 30, 1998); Kleinman v. United States Postal Serv., EEOC Request No. 05940585 (Sept. 22, 1994); Lingad v. United States Postal Serv., EEOC Request No. 05930106 (June 25, 1993). 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 unemployment compensation process, or the workers' compensation process.
Complainant's allegation that SM violated "arbitration awards and grievances" concerns an agency's compliance with a grievance decision, constituting a collateral attack on another administrative proceeding, and thereby fails to state a claim. See Complainant v. Dep't of Homeland Sec., EEOC Appeal No. 0120142347 (Nov. 5, 2014) Complainant's allegations that SM is performing Clerk Craft Work in violation of the December 5, 2014 settlement agreement also constitutes a collateral attack. Complainant's own news clippings provided to us for the record indicate that the proper forum for pursuing a complaint that a supervisor is in breach of the CBA by performing Clerk Craft Work will be determined by negotiation between the agency and Union as part of the settlement agree. Therefore, the appropriate forum for Complainant to challenge SM's compliance with previous grievance decisions and the settlement agreement is within the grievance procedure itself.
To the extent Complainant is pursuing the instant EEO complaint as a means of qualifying for, or obtaining a portion of the monetary damages awarded to the Union, in the December 5, 2014 settlement agreement, she is lodging an impermissible collateral attack against another forum. See Complainant v. United States Postal Serv., EEOC Appeal No. 0120142170 (Oct. 29, 2014) (Complainant alleging he was not included in a settlement agreement between the agency and union constituted a collateral attack on a separate forum.) As a member of the Union arguing that she is entitled to relief from a settlement agreement to which the Union is a party, it follows that Complainant should inquire with the Union on how to apply for a portion of the monetary award.
CONCLUSION
Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION
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 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. The requests 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 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
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
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
June 8, 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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