01A43257_r
10-22-2004
Dale A. Walker, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Dale A. Walker v. United States Postal Service
01A43257
October 22, 2004
.
Dale A. Walker,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A43257
Agency No. 4F-926-0038-04
DECISION
Complainant filed a timely appeal with this Commission from a final
agency decision (FAD) dated March 22, 2004, 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.
and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. � 791 et seq.
On November 17, 2003, complainant initiated contact with the EEO office.
Informal efforts to resolve complainant's concerns were unsuccessful.
In a formal complaint filed on January 15, 2004, complainant claimed that
he was subjected to ongoing harassment and a hostile work environment
on the bases of disability and in reprisal for prior protected activity.
In its FAD dated March 22, 2004, the agency determined that the instant
complaint was comprised of five claims, identified in the following
fashion:
(1) on April 28 and May 8, 2003, an agency Manager and Supervisor failed
to assign him work within his medical restrictions allegedly available,
forcing him to either use sick leave or apply for workers' compensation
benefits;
(2) on July 7 and 8, 2003, complainant was ordered to report to the
Lakeland Post Office branch facility in Hawaiian Gardens by the Manager
and Supervisor;
(3) on a continuing basis, management has failed to comply with the terms
of a grievance settlement dated August 28, 2003, by not paying him the out
of schedule compensation agreed to as part of the terms of the settlement;
(4) on an unspecified date in the spring of 2003, management changed his
lunch break from 1:30 p.m. to 2:00 p.m., which had been agreed upon in
an EEO mediation settlement on November 8, 2002; and
(5) since arriving at the Lakewood Post Office in May 2002, an agency
Supervisor gradually reduced his delivery of Express Mail, a duty provided
for in his limited duty job offer.
The agency dismissed claims (1) through (5) on the grounds of untimely EEO
Counselor contact, pursuant to 29 C.F.R. � 1614.107(a)(2). The agency
determined that complainant's initial EEO Counselor contact occurred on
November 17, 2003, which it found to be beyond the 45-day limitation
period. The agency further noted that EEO posters describing the 45-day
limitation period were on display at complainant's work facility.
The agency dismissed claim (3) on the alternative grounds of failure
to state a claim, pursuant to 29 C.F.R. � 1614.107(a)(1). The agency
determined that the matter raised in claim (3) constitutes a collateral
attack on another proceeding.
On appeal, complainant contends that his complaint consists �of one
issue only; an ongoing, continuing pattern of retaliatory discrimination
following the formal filing of an earlier complaint.� Complainant
further states that from October 2002 through October 2003, he �initiated
numerous EEO complaints and union grievances in an effort to halt an
ongoing and continuing pattern of discrimination related to a legitimate
on the job injury.�
Claim (3)
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in
relevant part, that an agency shall dismiss a complaint that fails 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's federal sector case precedent 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. Diaz v. Department of the Air Force, EEOC Request
No. 05931049 (April 21, 1994).
The Commission finds that the agency properly dismissed claim (3) for
failure to state a claim. The record contains sufficient evidence
supporting a determination that claim (3) constitutes a collateral
attack on the grievance process and involves actions relating to the
processing and the administration of complainant's grievance. It is
well-settled that an employee may not use the EEO complaint process to
lodge a collateral attack on the grievance process. Kleinman v. United
States Postal Service, EEOC Request No. 05940585 (September 22, 1994);
Lingad v. United States Postal Service, EEOC Request No. 05930106 (June
24, 1993).
Because we affirm the dismissal of claim (3) for the reason stated herein,
we will not address the alternative dismissal grounds.
Claims (1), (2) and (5)
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. Department of the Navy,
EEOC Request No. 05970852 (February 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.
EEOC Regulations provide that the agency or the Commission shall extend
the time limits when the individual shows that she was not notified of the
time limits and was not otherwise aware of them, that she did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence she was prevented
by circumstances beyond her control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
The Commission determines that the agency properly dismissed claims (1),
(2) and (5) for untimely EEO Counselor. Specifically, we note that
although these alleged incidents occurred on April 28 and May 8, 2003
(claim (1)), July 7 and 8, 2003 (claim (2)), and since May 2002 (claim
(5)), complainant failed to initiate EEO Counselor until November 17,
2003, which is beyond the applicable limitation period. We further find
that complainant has not provided adequate justification to extend the
time period.
Claim (4)
Upon review, we find the agency improperly dismissed claim
(4). Complainant stated in his formal complaint that a November 8,
2002 settlement agreement was breached when on an unspecified date in
the spring of 2003, management changed his lunch break from 1:30 p.m. to
2:00 p.m.<1> The agency improperly processed the settlement breach claim
as a new claim of discrimination without conducting an investigation of
possible breach, in accordance with 29 C.F.R. � 1614.504. Therefore,
we remand this matter to the agency for further processing in accordance
with the Order below.
Accordingly, the agency's dismissal of claims (1), (2), (3) and (5)
is AFFIRMED. The agency's dismissal of claim (4) is VACATED and this
matter is REMANDED to the agency for further processing in accordance
with the ORDER below.
ORDER
The agency is ORDERED to investigate the issue of whether there has been
a breach of a November 8, 2002 settlement agreement, regarding a change
in the time of complainant's lunch break. Thereafter, the agency shall,
within thirty (30) calendar days of the date that this decision becomes
final, issue a new final decision addressing complainant's breach claim.
A copy of the new final agency decision must be sent to the Compliance
Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
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 19848,
Washington, D.C. 20036. 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 (M0701)
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), 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 19848,
Washington, D.C. 20036. 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 (T0900)
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 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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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
October 22, 2004
__________________
Date
1The record contains no copy of the November 8,
2002 settlement agreement.