Sade M.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency.

Equal Employment Opportunity Commission

Jun 4, 2019

0120180567 (E.E.O.C. Jun. 4, 2019)

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.
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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.
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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.

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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.
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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 law”).

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).
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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.
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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).
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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).
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
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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