Kasi J.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Great Lakes Area), Agency.

Equal Employment Opportunity Commission

Jun 11, 2019

2019002550 (E.E.O.C. Jun. 11, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Kasi J.,1
Complainant,

v.

Megan J. Brennan,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.

Appeal No. 2019002550

Agency No. 4J-630-0127-18

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency's final decision dated December 17, 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., and Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq.

BACKGROUND

During the period at issue, Complainant worked for the Agency as a Mail Carrier Technician in
St. Louis, Missouri.

On June 21, 2018, Complainant filed an EEO complaint, Agency Case 4J-630-0062-18
(hereinafter referred to as “Complaint 1”), alleging discrimination based on age, disability, and
reprisal when on March 7, 2018, Complainant was sent home, and on March 29, 2018, she was
issued a Notice of Removal.

On July 21, 2018, Complainant signed an EEO settlement agreement in Complaint 1. The
settlement agreement provided that the Agency would give Complainant with a onetime lump
sum of $1,000 to settle her complaint.

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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On July 18, 2018, Complainant had requested EEO counseling for the complaint at issue
(“Complaint 2”) in the instant appeal. On October 25, 2018, when informal efforts to resolve her
concerns were unsuccessful, Complainant filed Complaint 2. Complainant claimed that the
Agency subjected her to discrimination based on race (African American), sex (female),
disability (mental and physical), and in reprisal for prior protected EEO activity when:

1. on dates not specified, Complainant was given an Agency vehicle with no air
conditioning;

2. on dates not specified, Complainant was instructed to perform someone else’s
work;

3. on a date not specified, Complainant was instructed to sign a sealed letter;

4. on a date not specified, management followed Complainant to the bathroom;

5. on a date not specified, Complainant was harassed by a coworker and
management did nothing;

6. on a date not specified, Complainant was not accommodated per her medical
restrictions, when she was put off the clock;

7. on a date not specified, Complainant was given a pre-disciplinary interview
(“PDI”), and subsequently, Complainant was issued a Notice of Removal;

8. on a date not specified, Complainant was forced to take under time;

9. on a date not specified, management spoke to Complainant unprofessionally,
screamed at her, threatened her, and called the police on her;

10. on a date not specified, management did not process a grievance settlement
payment;

11. on November 10, 2017, Complainant was instructed to provide medical
documentation to return to work;

12. on or around December 29, 2017, and May 12, 2018, Complainant received a
letter threatening her termination;

13. on a date not specified, Complainant’s request for Office of Worker’s
Compensation (“OWCP”) paperwork was denied, Complainant was denied
medical treatment, and told that nothing was wrong with her;

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14. on a date not specified, Complainant’s OWCP claims were denied;

15. on a date not specified, Complainant was given PDIs;

16. on a date not specified, Complainant was denied union representation;

17. on a date not specified, Complainant was forced to bid;

18. on a date not specified, Complainant’s PS Form 1769 Report of Hazard was not
investigated; and,

19. on a date not specified, Complainant was the subject of an investigation, and she
has not been informed of the outcome.

On November 21, 2018, Complainant received a request for information letter sent from the
Agency. The Agency requested that Complainant provide dates of the incidents listed in her
complaint. The letter also informed Complainant of the possibility that only issues occurring
within 45-days of her EEO counselor contact could be accepted for investigation. The letter also
informed Complainant that failure to respond could result in the dismissal of her complaint.
Complainant did not provide the requested information.

On December 17, 2018, the Agency issued its final decision regarding Complaint 2. The Agency
determined that Complainant failed to cooperate, and that there was insufficient information in
the record to adjudicate her complaint. Therefore, the Agency dismissed the entirety of the
complaint for failing to cooperate and provide relevant information in accordance with 29 C.F.R.
§ 1614.107(a)(7).

Alternatively, the Agency also provided a variety of alternate dismissal grounds. The Agency
dismissed claims 13 and 14 pursuant to 29 C.F.R. §1614.107(a)(1) for failure to state a claim.
Specifically, the Agency stated that claims 13 and 14 were a collateral attack on the OWCP and
Department of Labor processes. The Agency also dismissed claim 16 pursuant to 29 C.F.R.
§1614.107(a)(1) for failure to state a claim finding that this claim was a collateral attack on the
proceedings of the negotiated grievance procedure. The Agency similarly dismissed claim 18,
finding that the claim was a collateral attack on the proceedings of the Office of Safety and
Health Administration.

The Agency also alluded to the settlement agreement in Complaint 1 as a reason for dismissal
without specifying or citing to any particular EEO regulation.

The instant appeal followed. Complainant did not provide any new contentions on appeal.
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ANALYSIS AND FINDINGS

Failure to Provide Clarification and Cooperate

EEOC Regulation 29 C.F.R. § 1614.107(a)(7) provides for the dismissal of a complaint where
the agency has provided the complainant with a written request to provide relevant information
or otherwise proceed with the complaint, and the complainant has failed to respond to the request
within fifteen days of its receipt, or the complainant's response does not address the agency's
request, provided that the request included a notice of the proposed dismissal. The regulation
further provides that, instead of dismissing for failure to cooperate, the complaint may be
adjudicated if sufficient information for that purpose is available. Generally, the Commission has
held that an agency should not dismiss a complaint when it has sufficient information upon
which to base an adjudication. Ross v. United States Postal Service, EEOC Request No.
05900693 (August 17, 1990); Brinson v. United States Postal Service, EEOC Request No.
05900103 (April 12, 1990). It is only in cases where the complainant has engaged in delay or
contumacious conduct and the record is insufficient to permit adjudication that the Commission
has allowed a complaint to be dismissed for failure to cooperate. Card v. United States Postal
Service, EEOC Request No. 05970095 (April 23, 1998); Kroten v. United States Postal Service,
EEOC Request No. 05940451 (December 22, 1994).

Here, the Agency provided Complainant a written request to provide relevant information in
order for the Agency to proceed with the complaint. Complainant did not respond to that request.
However, Complainant had previously provided a detailed statement of her claims in a letter to
the Agency stamped received on October 29, 2018, as well as additional information in her pre-
counseling form. For example, Complainant listed an incident that occurred on March 7, 2018
that is relevant to her current complaint and appears to discuss the allegations regarding claim
17. In addition, the counseling report indicates that the event alleged in claim 6 occurred in May
2018.

Despite Complainant’s not responding to the Agency’s November 15, 2018 request, we find that,
with the exception of dates, there is sufficient information in the record which would have
allowed the Agency to proceed with the processing of at least significant portions of the formal
complaint. It is clear that Complainant is alleging a pattern of harassment and hostile work
environment. By alleging a pattern of harassment, Complainant has stated a cognizable claim
under the EEOC regulations. See Cervantes v. USPS, EEOC Request No. 05930303 (November
12, 1993). The Supreme Court has held that a complainant alleging a hostile work environment
will not be time barred if all acts constituting the claim are part of the same unlawful practice and
at least one act falls within the filing period. See National Railroad Passenger Corp. v. Morgan,
536 U.S. 101, 122 S. Ct. 2061 (2002). Here, some incidents comprising Complainant’s hostile
work environment claim occurred within the 45-day time period preceding Complainant’s July
18, 2018 EEO counselor contact. Therefore, her claim of ongoing harassment/hostile work
environment should be considered as timely raised.

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Furthermore, regarding the settlement agreement in Complaint 1, we are not persuaded that the
settlement agreement necessarily raised the same matters in Complaint 2 that would warrant the
dismissal of any claims in the instant complaint. Despite the Agency’s pronouncements that
unspecified claims in the instant matter raise the same matter as was raised in Complaint 1, the
record is devoid of documentation clearly demonstrating this assertion. Moreover, the Agency
did not specify which claim it was dismissing, or under what regulation. Instead, the Agency
merely alluded that the settlement agreement would result in possible dismissal. Clearly, it is the
burden of an agency to have evidence or proof in support of its final decision. See Marshall v.
Department of the Navy, EEOC Request No. 05910685 (September 6, 1991). The exception to
this may be claim 7. The Agency should clarify with Complainant on remand if this refers to the
same March 29, 2018 notice of removal that was the subject of Complaint 1.

Accordingly, we find that the Agency improperly dismissed the formal complaint in its entirety
pursuant to 29 C.F.R. § 1614.107(a)(7) for failure to cooperate. Nevertheless, Complainant is
advised to cooperate in the further processing of the instant formal complaint or face possible
future dismissal on these grounds if she does not do so.

Failure to State a Claim: Collateral Attack – Claims 13, 14, 16, and 18

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. Dep't of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994).

We have previously held that a complainant cannot use the EEO complaint process to challenge
actions which occurred within the OWCP adjudicatory process for workers' compensation
claims. Pirozzi v. Department of the Navy, EEOCRequest No. 05970146 (October 23, 1998) (all
egedly false statements made by agency to OWCP during OWCP's processing of a workers'
compensation claim goes to the merits of compensation claim); Hogan v. Department of the
Army, EEOC Request No. 05940407 (September 29, 1994) (reviewing a claim that agency
officials provided misleading statements to OWCP would require the Commission to essentially
determine what workers' compensation benefits the complainant would likely have
received); Reloj v. Department of Veterans Affairs, EEOC Request No. 05960545 (June 15,
1998) (claim that agency's providing false information to the OWCP resulted in denial of
benefits is a collateral attack on OWCP's decision and, thus, fails to state a claim). Dismissal of
an EEO complaint is appropriate where the complainant is attempting to lodge a collateral attack
on another proceeding. See Wills v. Department of Defense, EEOC Request No. 05970596 (July
30, 1998); Kleinman v. United States Postal Service, EEOC Request No. 05940585 (September
22, 1994); Lingad v. United States Postal Service, EEOC Request No. 05930106 (June 25,
1993).
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The subject of the Complainant’s complaint concerns in claims 13 and 14 concern the processes
of the Department of Labor and the OWCP. Therefore, the proper forum for Complainant to
have raised challenges to those actions would have been with the proceeding itself. Any remedial
relief available to Complainant would be through the OWCP process. There is no remedial relief
available to Complainant on this matter through the EEO complaint process. Therefore claims 13
and 14 were appropriately dismissed.

Similarly, collateral attacks to other administrative proceedings also fail to state a claim. See
Wills v. Department of Defense, EEOC Request No. 05970596 (July 30, 1998). Regarding
claim 16, Complainant should raise her concerns with the negotiated grievance process itself.
Therefore, claim 16 was also appropriately dismissed.

Regarding claim 18, Complainant alleged that her submission of a work place hazard form was
not appropriately investigated. Here, the Agency had dismissed claim 18 pursuant to 29 C.F.R.
§1614.107(a)(1) finding that it was a collateral attack on the proceedings of the Office of Safety
and Health Administration (“OSHA”). The Commission disagrees. Complainant submitted PS
Form 1769 Report of Hazard to Agency management, and it was Agency management that
allegedly failed to investigate, not OSHA. Therefore, we do not find that this claim was a
collateral attack on proceedings of OSHA. Claim 18 is therefore remanded for further processing
in accordance with the Order below.

Quality of Complaints Processing

Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110)
(August 5, 2015) provides that if a complainant is dissatisfied with the processing of his or her
pending complaint, whether or not it alleges prohibited discrimination as a basis for the
dissatisfaction, he or she should be referred to the agency official responsible for the quality of
complaints processing. It provides that agency officials should earnestly attempt to resolve
dissatisfaction with the complaints process as early and expeditiously as possible. The EEO MD-
110 states that the agency official responsible for the quality of complaints processing must add a
record of the complainant's concerns and any actions the agency took to resolve the concerns, to
the complaint file maintained on the underlying complaint. If no action was taken, the file must
contain an explanation of the agency's reason(s) for not taking any action. EEO MD-110 states
that a complainant must always raise his or her concerns first with the agency, in the above
manner. It provides that where the complainant's concerns have not been resolved informally by
the agency, the complainant may present those concerns to the EEOC at the hearings or appellate
stages.

Here, Complainant raised concerns about the processing of her complaint at the informal stage.
In its final decision, the Agency stated that it referred this allegation to the appropriate agency
official responsible for the quality of complaints processing. The Agency stated that an inquiry
would be conducted, and that a separate document would be issued regarding this allegation.
This procedure complies with the requirements of EEO MD-110.
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CONCLUSION

Accordingly, the Agency's final decision dismissing Complainant's formal complaint is
AFFIRMED in part and REVERSED in part. Specifically, dismissal of claims 13, 14 and 16
are AFFIRMED. Claims 1-12,2 15, 17-19 are hereby REMANDED as to the Agency for further
processing in accordance with this decision and the ORDER below.

ORDER (E0618)
The Agency is ordered to process the remanded claims 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 was issued. 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 was issued, 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.
As provided in the statement entitled "Implementation of the Commission's Decision,” the
Agency must send to the Compliance Officer: 1) a copy of the Agency’s letter of
acknowledgment to Complainant, 2) a copy of the Agency’s notice that transmits the
investigative file and notice of rights, and 3) either a copy of the complainant’s request for a
hearing, a copy of complainant’s request for a FAD, or a statement from the agency that it did
not receive a response from complainant by the end of the election period.
IMPLEMENTATION OF THE COMMISSION’S DECISION (K0618)
Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission’s corrective
action is mandatory. Within seven (7) calendar days of the completion of each ordered
corrective action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP)
supporting documents in the digital format required by the Commission, referencing the
compliance docket number under which compliance was being monitored. Once all compliance
is complete, the Agency shall submit via FedSEP a final compliance report in the digital format
required by the Commission. See 29 C.F.R. § 1614.403(g). The Agency’s final report must
contain supporting documentation when previously not uploaded, and the Agency must send a
copy of all submissions to the Complainant and his/her representative.
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).

2 With the exception of claim 7 to the extent that, after clarification, it references the same March
29, 2018 notice of removal that was the subject of Complaint 1.
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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 (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:
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).

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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 (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. 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, Director
Office of Federal Operations

June 11, 2019
Date