0120142714
12-17-2014
Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Western Area), Agency.
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Western Area),
Agency.
Appeal No. 0120142714
Agency No. 4E-553-0022-14
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated June 23, 2014, 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., 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
During the period at issue, Complainant worked as a City Carrier at the Agency's Columbia Heights, Minnesota Station.1
On March 19, 2014, Complainant initiated EEO Counselor contact. Informal efforts to resolve her concerns were unsuccessful.
On May 6, 2014, Complainant filed the instant formal complaint. Therein, Complainant alleged that she was subjected to harassment and a hostile work environment on the bases of sex, disability, age, and in reprisal for prior EEO activity when:
1. on March 17, 2014, she received information that a previously issued Notice of Removal was effectuated;
2. on an unspecified date in 2010, management singled her out for arriving late to work;
3. on an unspecified date in August 2011, a management official screamed at her and told her never to call the Postmaster's office again;
4. on an ongoing basis until August 2011, her supervisor would not allow her to sit and talk to her and not work but she allowed a co-worker to do so;
5. on an unspecified date in January 2012, the Postmaster singled her out when she told her to change her shirt;
6. on January 31, 2012, management instructed her not to discuss issues with her co-workers;
7. on unspecified dates between January 2012 and June 2012, management singled her out when she was ordered not to use her phone while on the clock;
8. on an unspecified date in January 2012, management singled her out when it ordered her not to distribute a flyer among her co-workers;
9. on January 11, 2012 and in May 2012, management failed to investigate her harassment claims;
10. on January 14, 2012, she was disciplined for sitting at the supervisor's desk;
11. on January 31, 2012, her manager issued her a Notice of Seven-Day Suspension;
12. on an unspecified date in May 2012, a member of the Threat Assessment Team did not respond to her requests for intervention regarding alleged harassment;
13. on May 7, 2012, her supervisor ordered her not talk to another employee and issued her a Notice of Fourteen-Day Suspension;
14. on May 16, 2012, her manager placed her on Emergency Placement and then issued her a Notice of Removal;
15. on June 7, 2012, management issued her a Notice of Removal;
16. on June 9, 2012, management placed her on Emergency Placement, and on an unspecified date issued her a Notice of Removal;
17. on an unspecified date in 2012, management failed to protect her records as required by its policies;
18. in December 2012, management did not pay her wages for that month;
19. on an unspecified date in January 2013, management instructed her to schedule her medical appointments while off duty;
20. on an unspecified date in May 2013, management failed to issue her a Letter of Warning resulting from a grievance settlement of a Notice of Removal.2
21. on or about May 28, 2013, the Station Manager threatened to discipline her if she failed to follow the chain of command to report complaints;
22. on or about May 29, 2013, management ordered her not to talk to her shop steward and a co-worker;
23. on an ongoing basis from December 2012 through August 2013, management failed to grant her requests for union representation immediately or within two hours of her requests;
24. on an unspecified date in November 2013, her supervisor instructed her to provide medical documentation that she could not deliver mail in the dark;
25. on an ongoing basis from November 2012 through an unspecified date in December 2013, management publicly criticized her work performance and alleged misconduct, screamed at her and overly scrutinized her work; and
26. on May 20, 2014 and previous dates, she received statements from the Agency informing her that it had collected by administrative salary offset moneys for an indebtedness to the Postal Service without providing her a Form 3111 or letters of demand and while the grievances were in place.3
The Agency dismissed claim 1 for stating the same claim that was raised in a prior EEO complaints, pursuant to 29 C.F.R. � 1614.107(a)(1). Specifically, the Agency found that claim 1 raises the same matter as raised in Agency Case No. 4E-553-0024-13.
The Agency further dismissed claims 2 - 26 on the grounds of untimely EEO Counselor contact, pursuant to 29 C.F.R. � 1614.107(a)(2). The Agency determined that Complainant's initial EEO Counselor contact was on March 19, 2014, which it found to be beyond the 45-day limitation period. The Agency also found that no continuing violation exists because the matters pertain to discrete actions. The Agency determined that Complainant was barred since she did not contact an EEO Counselor until March 19, 2014 and she did not seek to amend the instant complaint within 45 days of the alleged acts.
The Agency also dismissed claims 20, 23 and 26 pursuant to 29 C.F.R. � 1614.107(a)(1), for failure to state a claim. Specifically, the Agency determined that claims 20 and 23 are a collateral attack on the negotiated grievance process and claim 26 is a collateral attack on the Debt Collection Act process.
The instant appeal followed.
ANALYSIS AND FINDINGS
Claim 1
EEOC Regulation 29 C.F.R. � 1614.107(a)(1) provides that the Agency shall dismiss an entire complaint that states the same claim that is pending before or has been decided by the agency or the Commission.
Here, the Agency dismissed claim 1 on the grounds that the matter raised therein is the same matter that was raised in a prior formal complaint, Agency Case No. 4E-553-0024-13, alleging the same claim. The record supports a determination that Complainant had pursued the same matter in a prior complaint. We further note that in the instant case, Complainant acknowledged that claim 1 is related to her prior formal complaint (Agency Case No. 4E-553-0024-13). We note that Agency Case No. 4E-553-0024-13, is comprised of 19 separate claims, and that Claim 17 of that complaint indicates that Complainant was issued a Notice of Removal on October 17, 2013. The Administrative Judge (AJ) assigned to that complaint issued a decision without a hearing on September 17, 2014, finding no discrimination on this matter. On September 25, 2014, the Agency issued a final action implementing the AJ's decision.4
Claims 2 - 19, 21 - 22, and 24 - 25
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 she was not notified of the time limits and was not otherwise aware of them, that she did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence she was prevented by circumstances beyond her control from contacting the Counselor within the time limits, or for other reasons considered sufficient by the Agency or the Commission.
The alleged discriminatory events in these claims purportedly occurred from 2010 to
December 2013. However, Complainant did not initiate contact with an EEO Counselor until March 19, 2014, well beyond the 45-day limitation period. On appeal, Complainant has presented no persuasive arguments or evidence warranting an extension of the time limit for initiating EEO Counselor contact. Complainant had or should have had a reasonable suspicion of discrimination regarding her claim more than 45 days prior to her initial contact with an EEO Counselor.
Claims 20, 23 and 26
The regulation set forth at 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. Diaz v. Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994).
Upon review, we determine that claims 20 and 23 constitute a collateral attack on the negotiated grievance process. Regarding Claim 20, we note that in Agency Case No. 4E-553-0024-13, the AJ in that case indicated that the March 2013 removal notice was reduced to a letter of warning during a grievance-arbitration procedure. The Commission has held that 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. USPS, EEOC Request No. 05940585 (September 22, 1994); Lingad v. USPS, EEOC Request No. 05930106 (June 24, 1993). The proper forum for Complainant to have raised her challenges to actions which occurred during the negotiated grievance 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 negotiated grievance process.
Further, we find that the Agency properly dismissed claim 26 regarding events related to the Debt Collection Act. The Debt Collection Act, 31 U.S.C. 3711 et seq, mandates that monetary disputes involving an agency of the United States government and any claimed debtor must be resolved through the provisions of the Debt Collection Act. The Commission has previously held that challenges to an agency's actions under the Debt Collection Act are not within the scope of the EEO complaint process and the Commission's jurisdiction. See Baughman v. Department of Army, EEOC Appeal No. 01900865 (February 26, 1990). The proper forum for Complainant to challenge the propriety of the collection process and validity of her debt is through the administrative process of the Debt Collection Act. In the instant case, Complainant alleged that she was discriminated when she received statements from the Agency informing her that it had collected by administrative salary offset moneys for an indebtedness to the Postal Service without providing her a Form 3111 or letters of demand while her grievances were in place.
The Agency properly dismissed claims 20, 23 and 26 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 (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 (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 (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 the 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
December 17, 2014
__________________
Date
1 The record reflects that Complainant was removed from Agency employment effective March 17, 2014.
2 The Notice of Removal identified in claim 20 was a separate earlier removal action, on March 27, 2013, which appears to have been reduced to a Letter of Warning.
3 The record reflects that claims 2 - 26 and sex, disability and age as bases were later amended to the instant formal complaint. The record further reflects that by letter dated June 3, 2014, Complainant requested that the instant complaint be amended to include claims 2 - 26 which was granted.
4 The Agency's final action on Agency Case No. 4E-553-0024-13, is pending on appeal with the Commission, under Appeal No. 0120150263.
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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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