0120130025
02-28-2013
Arlene V. Kimble, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Great Lakes Area), Agency.
Arlene V. Kimble,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.
Appeal No. 0120130025
Agency No. 4J-460-0047-12
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated August 17, 2012, 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Clerk at the Agency's Nora Branch Office in Indianapolis, Indiana. On July 30, 2012, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of race (Black) and disability when she was subjected to harassment. In support of her claim of harassment, Complainant alleged that the following events occurred:
1. The Supervisor and the Acting Branch Manager (Manager) that specific documentation was requested for approval of sick leave on a week when Complainant had previously requested annual leave.
2. The Supervisor and the Manager have been allowed to violate the Collective Bargaining Agreement.
3. In July 2012, the Supervisor and the Manager adjusted Complainant's annual leave to sick leave in April 2012. Complainant asserted that the Supervisor and Manager delayed making the correction to her leave.
4. The Agency has allowed bullying, harassment, intimidation, threats and conduct unbecoming a supervisor to continue.
The Agency's final decision, the Agency defined the complaint as two events in support of her claim of harassment, namely:
A. On several dates, including April 17, 18, and 28, 2012, Management requested medical documentation; and
B. On April 27, 2012, Management charged Complainant with 3 hours annual leave instead of 3 hours sick leave as requested.
The Agency then dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a)(1). The Agency found that Complainant failed to show that the events were severe or pervasive enough to state a claim of harassment. As such, the Agency dismissed the matter.
This appeal followed.
ANALYSIS AND FINDINGS
Upon review, we find that Complainant alleged two separate claims of discrimination. The first claim was a claim of harassment based on her race and disability when she was subjected to bullying, intimidations, threats and conduct by the Supervisor and the Manager. The second claim was, in April 2012, Complainant was asked to provide medical documentation to support her request for leave. As such, she was charged annual leave in lieu of sick leave which was not corrected until July 2012. The Commission shall review whether these two claims were properly dismissed by the Agency pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim.
Under the regulations set forth at 29 C.F.R. Part 1614, an agency shall accept a complaint from an 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. Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (April 21, 1994). If complainant cannot establish that she is aggrieved, the Agency shall dismiss a complaint for failure to state a claim. 29 C.F.R. � 1614.107(a)(1).
On appeal, Complainant asserted that she "had to provide 'specific medical documentation of the time arrived and the time that left a doctor appointment' in order for that medical documentation to be accepted for scheduled sick leave." In the instant complaint, Complainant is alleging that she is being treated differently than other employees with regard to the use of sick leave. Complainant has alleged an injury or harm 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); see also McGaha v. U.S. Postal Serv., EEOC Appeal; No. 120121378 (June 15, 2012). As such, we find that the dismissal of Complainant's claim that she was required to provide medical documentation for her use of leave in April 2012 was not appropriate.
Complainant also alleged that she had been subjected to harassment, intimidation, bullying, and threats. Complainant also asserted that the actions of the Manager and the Supervisor violated the Collective Bargaining Agreement.1 The Commission has held that where, as here, 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). We note that Complainant did not provide any specific examples or indication to the Commission how she has been harassed. We find that Complainant's conclusory statements regarding her allegations of harassment are insufficient to state a claim of a hostile work environment. As such, we find that Complainant's claim of harassment was properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1).
CONCLUSION
The Agency's final decision is AFFIRMED in part and REVERSED in part. Complainant's claim regarding the request for medical documentation is REMANDED for further processing in accordance with the ORDER below
ORDER (E0610)
The Agency is ordered to process the remanded claim in accordance with 29 C.F.R. � 1614.108. The Agency shall acknowledge to the Complainant that it has received the remanded claims 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 (Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and
he civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
February 28, 2013
__________________
Date
1 We note that the Commission does not have jurisdiction on claims of violation of the Collective Bargaining Agreement (CBA). The 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 Def., EEOC Request No. 05970596 (July 30, 1998); Kleinman v. U.S. Postal Serv., EEOC Request No. 05940585 (Sept. 22, 1994); Lingad v. U.S. Postal Serv., EEOC Request No. 05930106 (June 25, 1993). The proper forum for Complainant to have raised his challenges to actions which violate the CBA are through the grievance process and not EEOC.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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