0120151087
02-10-2017
Charlie K.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Northeast Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Charlie K.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Northeast Area),
Agency.
Appeal No. 0120151087
Agency No. 1B-061-0042-14
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated December 24, 2014, dismissing his 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Mail Handler at the Agency's Processing and Distribution Center facility in Providence, Rhode Island.
Complainant indicated that on November 29, 2013, he was bypassed for overtime. Complainant and management entered into a grievance settlement that provided the Agency until February 27, 2014, to provide Complainant with a make-up overtime opportunity. When the Agency failed to comply with the grievance settlement, on April 3, 2014, Complainant contacted the EEO Counselor.
On May 19, 2014, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the basis of reprisal for prior protected EEO activity under an EEO statute that was unspecified in the record when, Management did not provide [Complainant] with a make-up overtime day by February 27, 2014 per the grievance settlement.
The Agency dismissed the matter by final decision dated June 19, 2014, pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim. The Agency determined that the complaint alleged discrimination when the Agency failed to comply with the grievance settlement. The Agency held that such a claim constituted a collateral attack on the grievance process and was not properly raised in the EEO process.
Complainant appealed that decision to the Commission. In EEOC Appeal No. 0120142711 (Dec. 3, 2014), the Commission found that the Agency defined the claim too narrowly. The previous decision noted that Complainant's claim was more properly defined as a claim of unlawful retaliation when he was bypassed for overtime on November 29, 2013. The decision then found that such a claim was an actionable claim. However, the decision noted that Complainant could not allege that the Agency failed to provide him with makeup hours pursuant to a grievance settlement. Therefore, Complainant's claim of unlawful retaliation based on the denial of overtime on November 29, 2013 was remanded back to the Agency for further processing "in accordance with 29 C.F.R. � 1614.108;" meaning the Agency was to conduct an impartial investigation of Complainant's claim.
Subsequently, by its decision dated December 24, 2014, the Agency dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a)(2) for failure to raise the claim in a timely manner with the EEO Counselor. The Agency noted that Complainant was bypassed for overtime in November 2013, but he did not contact the EEO Counselor some 125 days later, beyond the 45 day time limit. As such, the Agency found that the complaint should be dismissed.
Complainant appealed asserting that he contacted the EEO Counselor within 45 calendar days from the date the Agency had to rectify the issue pursuant to a grievance settlement. Complainant argued that he was denied overtime since November 2013 until February 2014 as a continuous claim. As such, Complainant argued that pursuant to Nat'l R.R. Passenger Corp. v. Morgan, 122 S.Ct. 2061 (June 10, 2002), the complaint was improperly dismissed and he requested that the Commission reverse the Agency's final decision.
ANALYSIS AND FINDINGS
As an initial matter, we reiterate that Complainant cannot challenge he was denied overtime in February 2014 in his EEO complaint. On appeal, Complainant argued that he and the Agency entered into a grievance settlement. The parties agreed that Complainant would have been provided with an overtime opportunity by February 27, 2014. The Agency's failure to comply with the grievance settlement by February 27, 2014, is not properly before the Commission. As stated by the Commission's decision in EEOC Appeal No. 0120142711, 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 his claim of breach of the grievance settlement was with the grievance process itself. As such, we remind Complainant that his claim of denial of overtime by February 27, 2014, is not properly before the Commission.
Therefore, the only claim before the Commission is Complainant's claim of unlawful retaliation when, on November 29, 2013, he was bypassed for overtime. As indicated above, the Agency had previously dismissed this complaint. In the Commission's previous decision, we reversed the Agency's final decision and remanded the matter for further processing in accordance with 29 C.F.R. � 1614.108.
EEOC Regulation 29 C.F.R. � 1614.108(b) requires that the Agency develop an impartial and appropriate factual record. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 ("MD 110"), Ch. 6-1 (Aug. 5, 2015). An appropriate factual record is one that allows a reasonable factfinder to draw conclusions as to whether discrimination occurred. Id. An investigator must be thorough "[t]o ensure a balanced record, it is necessary only to exhaust those sources likely to support the complainant and the respondent. An investigation conducted in this manner might reveal that there is ample evidence to support the complainant's claims and no evidence to support the agency's version of the facts, or vice versa. The best type of investigations allow for complainant to provide rebuttal evidence with sufficient time for the investigator to address any issues raised within the regulatory time frames." Id. Rather than investigating the complaint in compliance with the Commission's previous decision, the Agency dismissed the complaint again pursuant to 29 C.F.R. � 1614.107(a)(2). As such, we find that it is not appropriate for the Agency, at this stage, to ignore the order of the Commission's previous decision and dismiss the complaint.
CONCLUSION
We find that the Agency's final decision is REVERSED and the matter is REMANDED for further processing in accordance with the ORDER below.
ORDER (E0610)
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 becomes final. 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 becomes final, 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.
A copy of the Agency's letter of acknowledgment to Complainant and a copy of the notice that transmits the investigative file and notice of rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0610)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. 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). 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 (M0416)
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 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. The requests 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 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 (R0610)
This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. 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 filed your appeal with the Commission. 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. 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
February 10, 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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