Sade M.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency.Download PDFEqual Employment Opportunity CommissionJun 4, 20190120180567 (E.E.O.C. Jun. 4, 2019) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Sade M.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 0120180567 Hearing No. 460-2015-0091X Agency No. 4G-770-0204-14 DECISION On October 28, 2017, Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission), pursuant to 29 C.F.R. § 1614.403(a), from the Agency’s September 25, 2017, final decision concerning her equal employment opportunity (EEO) complaint alleging 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. For the following reasons, the Commission AFFIRMS the Agency’s final decision, in part, and VACATES the final decision, in part. ISSUES PRESENTED Whether Complainant timely filed her appeal; and whether the Agency discriminated against, and harassed, Complainant based on her age, disability, sex, and in reprisal for her prior EEO activity. BACKGROUND 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. 0120180567 2 At the time of events giving rise to this complaint, Complainant worked as a Carrier Technician at the Agency’s Roy Royall Post Office in Houston, Texas. On October 30, 2014, Complainant filed an EEO complaint alleging that the Agency discriminated against her based on her sex (female), and age (45 years old) when: 1. since July 16, 2014, her manager disapproved her requests for additional time to complete her route; and 2. on July 18, 2014, her manager required medical documentation for her absence. Complainant also alleged that she was harassed based on her sex, age, and disability (unspecified) when: 3. on September 29, 2014, her manager took 1½ hours of overtime from her and followed her on her route. Complainant also alleged that she was harassed based on her sex when: 4. on November 4, 2014, she was told to get off the clock because her medical document was incorrect, and then subsequently sent home because there was no work for her. At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation (ROI) and notice of her right to request a hearing before an EEOC Administrative Judge (AJ). Complainant timely requested a hearing, and on October 19, 2015, the AJ issued an Order on Initial Conference, Order on Amended Issues and Discovery Deadlines. In her order, the AJ added the following claims based on retaliation, sex, and/or disability: 5. on November 25, 2014, Complainant’s request to reuse her PS Form 3996 was denied, she was threatened with being sent home, she was told to get off the floor while on the phone, and she was not allowed to prepare mail; 6. on December 16, 2014, Complainant’s light duty assignment was voided, and she was sent home; 7. on December 16, 2014, Complainant was given special instructions on how to carry mail; 8. on December 21, 2014, Complainant turned in her CA-2,2 and it was not processed properly; 2 A CA-2 is the U.S. Department of Labor’s form used as Notice of Occupational Disease and Claim for Compensation. ROI at pgs. 333-356. 0120180567 3 9. on January 1, 2015, Complainant’s manager followed her off the workroom floor, raised her voice, and would not allow Complainant to finish her duties; 10. on January 13, 2015, management allowed a coworker to carry an all-riding route 3804 while Complainant had an all-walking route 1601; 11. on January 21, 2015, management allowed a coworker to carry an all-riding route even though he could walk two hours a day; 12. on January 27, 2015, a supervisor asked Complainant if she needed time off, and informed her that new light duty paperwork was needed after her walking restrictions changed; she was given an unrelated investigative interview; and a manager told her that she could only work two hours; 13. on January 30, 2015, Complainant was told to come in to accept a light duty position, but the paperwork was not ready. Complainant’s manager then informed her that the request was denied because of medical restrictions, even though her manager accepted the same paperwork on November 18, 2014; 14. on March 13-14, 2015, Complainant was given a verbal counseling after management instructed her to deliver cash-on-delivery mail, and she refused to do so; 15. on March 18, 2015, Complainant went to the emergency room for chest pains because of the treatment from her manager; and 16. on March 25, 2015, Complainant received a street observation. On August 1, 2017, Complainant withdrew her hearing request. The AJ then issued an Order of Dismissal and remanded the complaint back to the Agency to issue a final decision. On September 25, 2017, the Agency issued the final decision, concluding that Complainant failed to prove that the Agency subjected her to discrimination as alleged. As an initial matter, the Agency dismissed claims 14-16 stating that they were fully adjudicated in a prior EEO complaint (Agency Case No. 4G-770-0151-15, EEOC Appeal No. 0120160464). The Agency also noted that claim 15 should be dismissed for failure to state a claim because it did not concern a term, condition, or privilege of employment for which there is a remedy. The Agency also dismissed claim 8 as a collateral attack on another process. The Agency then found that Complainant had not established a prima facie case of discrimination based on age, disability, or sex. The Agency determined that Complainant had established a prima facie case of retaliation for claims 5-13. 0120180567 4 For claims 1-4, the Agency found that management officials articulated legitimate, nondiscriminatory reasons for their actions, and that Complainant had not set forth any evidence that could be viewed as pretext. For claims 5-13, the Agency noted that these claims were added after the completion of the investigation, and management officials did not have an opportunity to provide testimony in response to the issues.3 To the extent that the record established nondiscriminatory reasons for the managers’ actions, the Agency found that Complainant had not shown that the reasons were pretextual. Regarding Complainant’s harassment allegation, the Agency found that the incidents were not sufficiently severe or pervasive to create a hostile, abusive, or offensive work environment, or that they unreasonably interfered with her work performance. The Agency concluded that Complainant had not shown that she was discriminated against, or harassed, as alleged. Complainant filed the instant appeal, and she submitted various statements and documents in support of her appeal on January 6, 2018. The Agency filed an opposition brief on February 6, 2018.4 CONTENTIONS ON APPEAL Among other things, the Agency argues that Complainant’s appeal should be dismissed because it was not timely filed with the Commission. The Agency notes that the final decision was issued on September 25, 2017. The tracking information showed that it was delivered to Complainant on September 29, 2017, and Complainant had 30 days from this date to file her appeal. While Complainant’s appeal form was dated October 28, 2017, the Agency argued that the postmark shows that it was mailed on November 24, 2017. As such, the Agency asserts that Complainant did not file her appeal within 30 days, despite being notified of the deadline in the final decision. ANALYSIS AND FINDINGS Standard of Review As this is an appeal from a decision issued without a hearing, pursuant to 29 C.F.R. § 1614.110(b), the Agency’s decision is subject to de novo review by the Commission. 29 C.F.R. § 1614.405(a). See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614, at Chapter 9, § VI.A. (Aug. 5, 2015) (explaining that the de novo standard of review “requires that the 3 In the final decision, the Agency stated that the AJ issued specific instructions that the amended claims were not to be returned to an investigator to prevent the fragmentation of claims. 4 The Commission’s regulations provide that “any statement or brief in opposition to an appeal must be submitted to the Commission ... within 30 days of receipt of the statement or brief supporting the appeal, or, if no statement or brief supporting the appeal is filed, within 60 days of receipt of the appeal.†29 C.F.R. §1614.403(f). We note that Complainant did not send the Agency a copy of her appeal, and it did not learn of the appeal until receipt of the Commission’s notification on December 11, 2017. As such, we consider the Agency’s brief as being timely. 0120180567 5 Commission examine the record without regard to the factual and legal determinations of the previous decision maker,†and that EEOC “review the documents, statements, and testimony of record, including any timely and relevant submissions of the parties, and . . . issue its decision based on the Commission’s own assessment of the record and its interpretation of the lawâ€). Timeliness of Appeal Appeals to the Commission must be filed within thirty (30) calendar days after Complainant receives notice of the Agency’s final action. 29 C.F.R. § 1614.402(a). In this case, since Complainant’s representative is not an attorney, the time within which to appeal shall be calculated from the receipt of the required document by Complainant. 29 C.F.R. § 1614.402(b). Where, as here, there is an issue of timeliness, “[a]n agency always bears the burden of obtaining sufficient information to support a reasoned determination as to timeliness.†Guy v. Dep't of Energy, EEOC Request No. 05930703 (Jan. 4, 1994) quoting Williams v. Dep't of Defense, EEOC Request No. 05920506 (Aug. 25, 1992). With its opposition brief, the Agency provided proof showing that the final decision was delivered to Complainant on September 29, 2017. A review of the final decision reveals that the Agency properly advised Complainant that she had thirty (30) calendar days after receipt of its final decision to file her appeal with the Commission. Therefore, in order to be considered timely, Complainant had to file her appeal no later than October 30, 2017.5 Our regulations further provide that a document is deemed timely if it is delivered in person or postmarked before the expiration of the applicable filing period, or, in the absence of a legible postmark, if it is received by mail within five days of the expiration of the applicable filing period. 29 C.F.R. § 1614.604(b). In this case, the envelope for Complainant’s appeal contains two postmarks, a hand-stamp postmark of “OCT 28 2017,†and a machine-generated postmark of November 24, 2017. We note that the appeal was sent via regular first-class mail, and it is unclear why the machine-generated postmark is approximately one month after the hand-stamp postmark. As noted above, it is the Agency’s burden to prove that Complainant’s appeal was untimely, and we find that it has not done so. Accordingly, we find that Complainant’s appeal is timely. Dismissal of Claims We AFFIRM the Agency’s procedural dismissal of claims 8, 14, 15, and 16. Regarding claim 8, in which Complainant alleged that she was retaliated against when the Agency did not properly process her CA-2 form, we find that this is a collateral attack. 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 workers’ compensation process, an internal agency investigation, or state or federal litigation. See Fisher v. Dep't of Defense, EEOC Request No. 05931059 (July 15, 1994). 5 The 30-day deadline to file the appeal fell on Sunday, October 29, 2017. Accordingly, the deadline is extended to the next business day. See 29 C.F.R. § 1614.604(d). 0120180567 6 The record shows that the Department of Labor’s Office of Workers’ Compensation Programs responded to Complainant’s December 2014 application on January 14, 2015, to inform her that it needed additional documentation to process her claim. ROI at pg. 135. 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 Defense, 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). As such, we affirm the procedural dismissal of claim 8. We also affirm the dismissal of claims 14 and 16, because they were addressed in a prior appeal in Sade M. vs. U.S. Postal Serv., EEOC Appeal No. 0120160464 (Mar. 18, 2016). The regulation set forth at 29 C.F.R. § 1614.107(a)(1) provides that the Agency shall dismiss a complaint that states the same claim that is pending before, or has been decided by, the Agency or Commission. Accordingly, we affirm the procedural dismissal of claims 14 and 16. While we note that claim 15 was not an accepted claim in EEOC Appeal No. 0120160464, we affirm its dismissal for failure 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 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. Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994). When the complainant does not allege that she is aggrieved within the meaning of the regulations, the Agency shall dismiss the complaint for failure to state a claim pursuant to 29 C.F.R. § 1614.107(a)(1). We find that Complainant’s trip to the emergency room is not a harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy, and we affirm its procedural dismissal. Adequacy of the Record EEOC Regulation 29 C.F.R. § 1614.108(b) requires, inter alia, that an agency develop an impartial and appropriate factual record upon which to make findings on the claims raised in the complaint. One purpose of an investigation is to gather facts upon which a reasonable fact finder may draw conclusions as to whether a violation of the discrimination statutes has occurred. Id. In this case, claims 5-16 were added by the AJ during the hearing stage, and when the Agency issued its final decision, it did so without an additional investigation on these claims. While the Agency stated that the AJ ordered it not to send the amended claims to an investigator, she did so in her October 19, 2015 order, when she had jurisdiction over the complaint and expected to fully develop the record during the hearing stage. Complainant withdrew her hearing request on August 1, 2017. The AJ issued an order remanding the complaint back to the Agency to issue a final decision, but we note that she did not repeat her order that the Agency not investigate the amended claims. 0120180567 7 We find that once jurisdiction returned to the Agency, it should have obtained additional information on the amended claims prior to issuing the final decision because the record is not adequate to make a determination on the merits of Complainant’s complaint. Therefore, we VACATE the Agency’s final decision for claims 1-7 and 9-13, and REMAND the complaint back to the Agency, in accordance with the ORDER below. CONCLUSION Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency’s procedural dismissals of claims 8, 14, 15, and 16. However, we VACATE the Agency’s findings for the remaining claims, and REMAND the complaint back to the Agency for further action, in accordance with the ORDER below. ORDER Within 180 calendar days of receipt of this order, the Agency shall: 1. conduct a supplemental investigation for claims 5-7 and 9-13; and 2. issue a new final decision for claims 1-7 and 9-13, following the completion of the supplemental investigation. The new final decision shall provide Complainant with the appropriate appeal rights. A copy of the Agency’s supplemental investigative report and new final decision must be sent to the Compliance Officer, as referenced below. 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). 0120180567 8 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). 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 0120180567 9 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’s signature Carlton M. Hadden, Director Office of Federal Operations June 4, 2019 Date Copy with citationCopy as parenthetical citation