0120131916
08-27-2013
Dena J. Watkins, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southeast Area), Agency.
Dena J. Watkins,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southeast Area),
Agency.
Appeal No. 0120131916
Agency No. 4G700000213
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated March 20, 2013, 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 Letter Carrier at the Agency's Post Office facility in Marrero, Louisiana.
On February 23, 2013, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of disability and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when: (1) on October 29, 2012, management refused to meet at Informal A with the union steward to discuss her grievances; (2) on October 15, 2012, she was issued a notice of proposed removal and subsequently issued removed effective December 14, 2012; (3) on October 1, 2012, management contacted her personal physician regarding her medical condition; and (4) on September 15, 2012 management yelled at her in front of her co-workers.
The Agency dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim. Claim 1 was considered a collateral attack on the grievance process. Claim 2 and 3 were intertwined and raised in an appeal to the Merits Systems Protection Board. Claim 4 was similar to claims raised in an earlier complaint.
The instant appeal followed. In her appeal, Complainant included a copy of an arbitrator's decision which ordered her reinstatement.
ANALYSIS AND FINDINGS
Claim 1
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 her challenges concerning management's refusal to meet with a union steward was within the grievance process.
Claims 2 and 3
An aggrieved person may initially file a mixed case complaint with an agency or may file a mixed case appeal directly with the MSPB, pursuant to 5 C.F.R. � 1201.151, but not both. 29 C.F.R. � 1614.302(b). 29 C.F.R. � 1614.107(a)(4) provides that an agency shall dismiss a complaint where the complainant has raised the matter in an appeal to the MSPB and 29 C.F.R. � 1614.302 indicates that a complainant has elected to pursue the non - EEO process.
The record shows that Complainant was removed for allegedly falsifying a medical document from her physician. This is what prompted the Agency to contact her physician. The Agency also dismissed this claim as a collateral attack on the HIPPA Privacy Rule. Because we find that this claim is intertwined with her removal, and Complainant appealed her removal to the MSPB on January 16, 2013, we find claims 2 and 3 were properly dismissed. Complainant may not file an EEO complaint and an appeal to the MSPB on the same matter. She may, however, file an appeal with EEOC from the MSPB's decision on any claims of discrimination raised in conjunction with her challenge to her removal pursuant to 29 C.F.R. � 1614.303.
Claim 4
The Agency dismissed 4 for being identical to those claims raised in a previous complaint. It has long been established that "identical" does not mean "similar." The Commission has consistently held that in order for a complaint to be dismissed as identical, the elements of the complaint must be identical to the elements of the prior complaint in time, place, incident, and parties. See Jackson v. Dep't of the Air Force, EEOC Appeal No 01955890 (Apr. 5, 1996) rev'd on other grounds, EEOC Request No. 05960524 (Apr. 24, 1997).
In EEO complaint 4G-700-0142-12, filed on September 25, 2012, Complainant alleged that her supervisor yelled at her on between August 7 - September 12, 2012. While this is not the identical time frame to claim 4 in the instant complaint (September 15, 2012), we find that this claim should be dismissed for failure to allege facts that would establish that she is an "aggrieved employee." Diaz v. Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994). Where, as here, Complainant has not alleged disparate treatment regarding a specific term, condition, or privilege of employment, the Commission will examine whether a complainant's allegations, when considered together and assumed to be true, are sufficient to state a hostile or abusive work environment claim. See Estate of Routson v. National Aeronautics and Space Administration, EEOC Request No. 05970388 (February 26, 1999). Even if harassing conduct produces no tangible effects, a complainant may assert a cause of action if the discriminatory conduct was so severe or pervasive that it created a work environment abusive to complainant because of his race, gender, religion, national origin, age or disability. Rideout v. Department of the Army, EEOC Appeal No. 01933866 (November 22, 1995) (citing Harris v. Forklift Systems, Inc., 510 U.S. 17, 22 (1993)) request for reconsideration denied EEOC Request No. 05970995 (May 20, 1999). In this case, we that the isolated incidents alleged by Complainant lack the severity necessary to create a direct and personal deprivation sufficient to render her aggrieved for the purposes of Title VII. See Backo v. United States Postal Service, EEOC Request No. 05960227 (June 10, 1996); Henry v. United States Postal Service, EEOC Request No.05940695 (February 9, 1995).
Accordingly, the Agency's final decision dismissing Complainant's complaint 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
August 27, 2013
__________________
Date
2
0120131916
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120131916