0120152284
10-26-2017
Stacie D,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Eastern Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Stacie D,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.
Appeal No. 0120152284
Agency No. 4C-440-0163-14
DECISION
On June 19, 2015, 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 May 20, 2015, final decision concerning her equal employment opportunity (EEO) complaint alleging employment discrimination in violation of 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 City Carrier at the Agency's Noble Station facility in Cleveland, Ohio.
On December 17, 2014, Complainant filed an EEO complaint alleging that the Agency discriminated against her on the bases of disability (anxiety, depression and hip bursitis) and reprisal for prior protected EEO activity under Section 501 of the Rehabilitation Act of 1973 when she was subjected to harassment. In support of her claim of harassment, Complainant alleged the following events:
1. On September 2, 2014, the supervisor (Supervisor) told Complainant that her medical documentation was unacceptable and that they give everyone a hard time in order to deter people from calling out sick.
2. On September 4, 2014, her manager (Manager) accused Complainant of doing things the Manager had told her not to do.
3. On September 4, 2014, Complainant was charged with Leave without Pay (LWOP) when she had requested Sick Leave.
At the conclusion of the investigation, the Agency provided Complainant with a copy of the report of investigation and notice of her right to request a hearing before an Equal Employment Opportunity Commission Administrative Judge (AJ). When Complainant did not request a hearing within the time frame provided in 29 C.F.R. � 1614.108(f), the Agency issued a final decision pursuant to 29 C.F.R. � 1614.110(b). The decision concluded that Complainant failed to prove that the Agency subjected her to discrimination as alleged.
On appeal, Complainant filed her form requesting a hearing before an AJ dated June 18, 2015. Complainant appealed asserting that management has been in possession of her medical documentation including all of her limitations. Complainant challenges the comments made by the Manager and adds new claims on appeal regarding the Manager's failure to respond to other claims of sexual harassment in the workplace.
ANALYSIS AND FINDINGS
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 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").
Complainant, on appeal, requested a hearing and raised new claims for the first time. As to the hearing request, we note that Complainant's request was dated June 18, 2015, well beyond the 30 day time limit to request a hearing. As such, we deny Complainant's request for a hearing before an AJ. As to Complainant's statements regarding new claims of discrimination, we find that these new claims are not at issue in the complaint before us and they will not be adjudicated in this decision.
As such, we shall turn to Complainant's claim of harassment in violation of the Rehabilitation Act. It is well-settled that harassment based on an individual's disability and prior EEO activity is actionable. See Meritor Savings Bank FSB v. Vinson, 477 U.S. 57 (1986). In order to establish a claim of harassment under those bases, the complainant must show that: (1) she is a qualified individual with a disability covered under the Rehabilitation Act and/or engaged in prior EEO activity; (2) she was subjected to unwelcome conduct; (3) the harassment complained of was based on her disability and/or prior EEO activity; (4) the harassment had the purpose or effect of unreasonably interfering with her work performance and/or creating an intimidating, hostile, or offensive work environment; and (5) there is a basis for imputing liability to the employer. See Flowers v. Southern Reg'l Physician Serv. Inc., 247 F.3d 229 (5th Cir. 2001); see also Fox v. General Motors Corp., 247 F.3d 169 (4th Cir. 2001). The harasser's conduct should be evaluated from the objective viewpoint of a reasonable person in the victim's circumstances. Enforcement Guidance on Harris v. Forklift Systems Inc., EEOC Notice No. 915.002 (March 8, 1994).
We presume, for purposes of analysis only and without so finding, that Complainant is an individual with a disability.
As for event (1), Complainant alleged that she was told that her medical documentation was not sufficient for her claim of eight hours of leave under FMLA. In event (3), Complainant stated that she was charged with LWOP when she had requested sick leave. Complainant argued that she should have been provided with sick leave for she is covered under FMLA. 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); Linpad v U.S. Postal Serv., EEOC Request No. 05930106 (June 25, 1993). The proper forum for Complainant to have raised his challenges to his FMLA eligibility was through the Department of Labor's FMLA enforcement procedures. It is inappropriate to now attempt to use the EEO process to collaterally attack actions related to her eligibility for FMLA. 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 Def., EEOC Request No. 05931059 (July 15, 1994). Therefore, we cannot address Complainant's events to the extent Complainant has alleged that the Agency's actions were improper under FMLA.
As to event (2), Complainant alleged that the Manager would accuse her of doing things which the Manager alleged that she had told her not to do. Complainant asserted that the Manager did not instruct her as the Manager had alleged. Complainant believed that this created a hostile work environment. In event (3), to the extent she alleged that she was charged LWOP for September 4, 2014, the Manager stated that Complainant failed to complete the slip requesting leave. The Manager asserted that Complainant abandoned her job and walked out of the office and punched off the clock. The Supervisor corroborated the Manager's statement that Complainant left without filling out a request for leave. Therefore, Complainant was listed as LWOP. Complainant alleged that based on her protected classes, management subjected her to a hostile work environment as evidenced by the three incidents. The Commission finds that the record does not show that the Agency subjected Complainant to a hostile work environment. The record reflects that the alleged incidents were more likely the result of routine supervision, personality conflicts, and general workplace disputes and tribulations. The Commission notes that Title VII is not a civility code. Rather, it forbids "only behavior so objectively offensive as to alter the conditions of the victim's employment." Oncale v. Sundowner Offshore Serv., Inc., 523 U.S. 75, 81 (1998). Therefore, we conclude that Complainant failed to establish her claim of unlawful harassment based on her disability and/or prior EEO activity.
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 final decision.
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 (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 (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
October 26, 2017
__________________
Date
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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