Complainant,v.Patrick R. Donahoe, Postmaster General, United States Postal Service (Headquarters), Agency.

Equal Employment Opportunity CommissionJul 11, 2014
0120141492 (E.E.O.C. Jul. 11, 2014)

0120141492

07-11-2014

Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Headquarters), Agency.


Complainant,

v.

Patrick R. Donahoe,

Postmaster General,

United States Postal Service

(Headquarters),

Agency.

Appeal No. 0120141492

Agency No. 4X048000514

DECISION

Complainant filed a timely appeal with this Commission from the Agency's decision dated February 3, 2014,1 dismissing her 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., 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.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Customer Care Agent at the Agency's Customer Service Center in Los Angeles, California.

On December 7, 2013, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of disability, age (52), and reprisal when (1) upon her return to duty on February 11, 2013, she was not paid back pay, or not returned annual leave or sick leave or other employment benefits that did not accrue during her forced absence; and (2) she was put in a no work status, based on her medical restrictions from May 5, 2009 - February 11, 2013.

The Agency dismissed the complaint as a collateral attack on a grievance settlement as well as for untimely EEO counselor contact. The instant appeal followed. In her appeal, Complainant explains she was sent of work because of the National Reassessment Process (NRP) and when she returned, she learned that other employees received payments and benefits as a result of an agreement with the National Association of Letter Carriers.

ANALYSIS AND FINDINGS

As an initial matter, we note that the Agency improperly dismissed Complainant's reprisal claim in a footnote, stating she had no record of EEO activity. Such a determination goes to the merits of the matter, not as to whether it states a claim. Additionally, we note that the Agency recognized that Complainant is a member of the McConnell class action by virtue of being placed a no work status based on the NRP.

Claim 1

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 raise challenges with respect to her entitlement to benefits awarded as part of a grievance settlement is within that process itself. The Commission's regulations do not convey it with the jurisdiction to determine who is eligible for grievance settlements.

Claim 2

EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five (45) days of the effective date of the action. The Commission has adopted a "reasonable suspicion" standard (as opposed to a "supportive facts" standard) to determine when the forty-five (45) day limitation period is triggered. See Howard v. Dep't of the Navy, EEOC Request No. 05970852 (Feb. 11, 1999). Thus, the time limitation is not triggered until a complainant reasonably suspects discrimination, but before all the facts that support a charge of discrimination have become apparent.

In the instant matter, Complainant was out of work from May 5, 2009 - February 11, 2013. She did not contact an EEO counselor until October 30, 2013. Complainant states she decided to file an EEO complaint after she learned about the grievance settlement. We find that Complainant's EEO counselor contact was untimely and she failed to provide sufficient reason to extend the time limits for contacting an EEO counselor.

Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0610)

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 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. 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 (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 (Z0610)

If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action").

FOR THE COMMISSION:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

July 11, 2014

__________________

Date

1 The FAD is dated February 3, 2013. Given the date of the formal complaint, we find it should be 2014. Additionally as part of its analysis, the Agency stated that Complainant was put on no-work status on May 5, 2013. The correct date is May 5, 2009.

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0120141492

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0120141492