0120083494
12-24-2008
Donald N. Madison, Jr., Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Donald N. Madison, Jr.,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120083494
Agency No. 1F-901-0042-05
DECISION
Pursuant to 29 C.F.R. � 1614.405, the Commission accepts complainant's
appeal from the agency's June 30, 2008 final decision concerning his 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.
During the relevant period, complainant was employed as a Motor Vehicle
Services Driver, PS-06, at the agency's Los Angeles Processing and
Distribution Center in Los Angeles, California.
On October 12, 2004, complainant initiated EEO Counselor contact.
Informal efforts to resolve his concerns were unsuccessful. Subsequently,
complainant filed a formal complaint on February 23, 2005. Therein,
complainant alleged that the agency discriminated against him on the
basis of reprisal for prior EEO activity when:
(1) on January 5, 2005, he received a Notice of Removal dated December
23, 2004, with an effective date of February 16, 2005; and
(2) he filed for early retirement in August 2003 and has received no
response from the agency.
The record reflects that in the fall of 2003, the agency and union were
engaged in litigation in federal court concerning, among other things,
whether the agency should be required to offer voluntary early retirement
(VER) to eligible employees in complainant's job classification.
The record further reflects that on or about December 19, 2003, the
agency and union reached a settlement in the litigation, requiring the
agency to request authorization to offer VER to complainant's class of
employees from the Office of Personnel Management (OPM). The agency
requested authorization on or about January 23, 2004, and OPM granted
this authorization in or about early March 2004. On January 7, 2004,
complainant requested leave under the Family and Medical Leave Act
(FMLA) and was required to provide supporting documentation by February
15, 2004. The record reflects, however, complainant's FMLA request was
denied because of his failure to submit documentation. In February
2004, complainant requested leave of absence, which was also denied.
Complainant last reported for duty on February 20, 2004; and he
subsequently moved to Shreveport, Louisiana on or about March 2, 2004.
On an unspecified date, the agency issued a partial dismissal. The agency
accepted claim (1) for investigation. The agency dismissed claim (2)
pursuant to 29 C.F.R. � 1614.107(a)(2) on the grounds of untimely
EEO Counselor contact. Specifically, the agency determined that
complainant's initial EEO contact occurred on October 12, 2004 which
it found to be beyond the 45-day limitation period. The agency further
determined that complainant had or should have had reasonable suspicion of
unlawful employment discrimination prior to October 12, 2004. Finally,
the agency determined that complainant was aware of the 45-day requisite
time because he had engaged in prior protected activity.
The agency also dismissed claim (2) on alternative grounds of failure to
state a claim, pursuant to 29 C.F.R. � 1614.107(a)(1). Specifically,
the agency determined that the request for retirement was a collateral
attack on the OPM process.
At the conclusion of investigation concerning claim (1), complainant
was provided with a copy of the report of the investigation and notice
of his right to request a hearing before an EEOC Administrative Judge
(AJ). Complainant timely requested a hearing but subsequently withdrew
his request. Consequently, the agency issued a final decision pursuant
to 29 C.F.R. � 1614.110(b).
In its June 30, 2008 final decision, the agency again dismissed claim (2)
for untimely EEO Counselor contact. The agency noted that a review of
the record reflects that on or about August 13, 2003, complainant applied
for VER but was not offered it due to the mission needs of the area.
The agency further noted that the review reflects that the issue of not
offering VER to all eligible employees was a very public issue which
was discussed between the union and its members, including complainant.
The agency noted when complainant last reported to work in February 2004,
he was aware at that time that he had not been offered VER and should
have been aware that the union had settled the issue with management in
December 2003. The agency stated, however, complainant did not initiate
EEO contact until October 12, 2004, nearly one year after he had or
should have had reasonable suspicion that his request for VER had not
been granted.
The agency also dismissed claim (2) for failure to state a claim, finding
that an employee cannot use the EEO process to lodge a collateral attack
on another forum's proceeding and that the proper forum for complainant
to have raised these issues concerning the processing of a request for
retirement was through OPM.
With respect to claim (1), the agency found no discrimination. The agency
found that complainant did not establish a prima facie case of reprisal
discrimination. The agency further found that assuming complainant
established a prima facie case, management articulated legitimate,
nondiscriminatory reasons for its actions which complainant did not
prove were pretext for reprisal discrimination.
Regarding claim 1, the Manager (M1) stated that complainant was issued a
Notice of Removal because he stopped coming to work as of February 20,
2004 and failed to call. M1 further stated that complainant "did not
respond to communication sent to him. [Complainant] had moved from the
address on file with the USPS." With respect to complainant's allegation
that M1 denied his request for leave during the June 1, 2004 through
December 23, 2004 time period, M1 stated "I have no documents from
[Complainant]."
With respect to complainant's allegation that he provided the Personnel
Department with a change of address and also filed a change of address
with the Pomona Post Office, M1 stated "I have no knowledge that
[this] employee submitted a change of address." M1 further stated that
complainant's prior protected activity was not a factor in management's
determination to issue him a Notice of Removal.
The Manager, Transportation and Networks (MT) stated that he was the
deciding official to issue complainant a Notice of Removal dated December
23, 2004. Therein, MT informed complainant that he was being removed for
"Failure to Respond to Official Notification/Unsatisfactory Attendance Due
to Unscheduled Absences, Absence Without Official Leave, No Call AWOL."
MT stated that complainant did not respond to communications sent to the
address on file with the agency and was being removed "for not reporting
to [this] assignment." The record reflects that MT stated that there
were no other employees that were treated more favorably than complainant
under similar circumstances. Furthermore, MT stated that he did not
discriminate against complainant based on his prior protected activity.
The former Supervisor/Acting Manager, Transportation & Networks (S1)
stated that during the relevant time, complainant did not submit any
leave requests for his absences nor was he provided with any written
information regarding a chance of address. Specifically, S1 stated,
"I do not recall [Complainant] submitting any written request to me for
leave of absence to move out of state." S1 also stated that complainant
also did not provide him "with written information or request, or change
of address ([PS Form] 1216)."
With respect to complainant's allegation that S1 refused to approve his
leave request because he was moving to Louisiana, S1 stated, "I do not
recall [Complainant] submitting any written request to me for leave of
absence to move out of state."
On appeal, complainant, through his representative, contends that he
"applied for VER, asked for FMLA leave while awaiting approval of the
VER, and then moved to Louisiana. Even though he was sending medical
documentation to the FMLA office after he moved, and the Plant Manager was
able to locate him by sending a birthday card, it seems that none of the
personnel notification letters were being sent to the correct address."
Complainant further argues that since the agency's proffered reason
"is not believable, Complainant has established that the reason given
was pretextual."
Claim (1)
After a thorough review of the record, we conclude that the evidence is
insufficient to allow a determination on the merits of claim (1) on the
alleged basis of retaliation. We note that in his affidavit, complainant
alleged four identified employees who were also AWOL for extended periods
of time but were not removed from agency employment. Complainant further
claimed that he provided a change of address form, while the agency
denied receiving the subject form which hindered its ability to ensure
his receipt of important information and notifications. We also note
that while complainant alleged that he submitted documentation for leave
of absence, the agency stated that it never received the documentation.
The Commission's regulations and the Equal Employment Opportunity
Commission Management Directive 110 for 29 C.F.R. Part 1614 (MD-110)
require agencies to develop a complete and impartial factual record.
See 29 C.F.R. � 1614.108(b); MD-110, Chapter 6, page 6-1 (November
9, 1999). From the inception of complainant's affidavit, he alleges
that he was treated less favorably than similarly situated co-workers
outside of his protected groups and that he never received relevant
documentation concerning his unsatisfactory attendance/unscheduled
leave at his Louisiana mailing address. The Commission notes that
there is no sworn statement by agency officials in the record concerning
complainant's allegations regarding his change of address and leave of
absence documentation.
Because of the inadequacies in the record before us, we find it necessary
to remand claim (1) to the agency for a supplemental investigation.
On remand, the agency shall conduct a thorough investigation of the
comparative employees' situations. With respect to complainant's
allegation that he was treated differently from four identified employees
who were also AWOL for extended periods of time but were not removed
from agency, the agency shall obtain all documentation necessary to
determine the comparative employee's work performance and leave records
during the relevant time. Such documentation shall include, but not
be limited to, all relevant leave forms, assignment letters, complaints
filed, and, if applicable, notices of disciplinary action and removal.
To the extent necessary to supplement or to clarify documentation, the
agency shall obtain sworn affidavits from the comparative employees.
To the extent necessary to supplement or clarify the documentation, the
agency shall obtain sworn affidavits from agency officials with direct
knowledge of the circumstances surrounding complainant's removal.
Further, the agency shall obtain all documentation necessary to determine
whether Personnel received a form from complainant concerning a change
of address for his Louisiana address. We note in the December 23, 2004
Notice of Removal, MT noted that on December 6, 2004 a notification
was sent to complainant but he failed to respond to it.1 We also note
that MT stated that on June 21, 2004, a letter of inquiry was sent to
complainant, and delivered to his address of record on June 23, 2004,
requiring him to report to duty and substantiate his absence. The record
reflects that complainant failed to report or respond to the notice.
We further note that a review of the record indicates that complainant
stated that during this time frame he submitted leave requests to M1 and
S1 which were denied. The agency shall obtain documentation including,
but not limited to, all relevant documentation concerning the change of
address and official notifications concerning unsatisfactory attendance
and unscheduled leave; and affidavits from Personnel officials with
knowledge of the circumstances surrounding complainant's change of
address.
Claim (2) - Untimely EEO Counselor contact
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 he was not notified of the
time limits and was not otherwise aware of them, that he did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence he was prevented
by circumstances beyond his control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
We find the agency improperly dismissed this claim on the grounds of
untimely EEO Counselor contact. In its final decision, the agency stated
that complainant did not contact an EEO Counselor with regard to his
department being eliminated from VER eligibility until October 12, 2004
which the agency determined was beyond the 45-day limitation period set
by the regulations. Specifically, the agency stated that complainant had
reasonable suspicion of retaliation in February 2004 when he allegedly
became aware that his department was eliminated from VER eligibility.
The agency also argued that complainant had or should have had reasonable
suspicion when his requests for leave of absence and FMLA were denied,
and when he was told to resign. However, based on a review of the
record, we note that complainant alleged that he believed the agency's
failure to respond was due to the contractual dispute between the union
and management because the litigation concerned the very issue of his
eligibility for VER. Complainant further alleged that he reasonably
expected that his application, which was submitted in August 2003, would
not be processed until after the agency and union resolved the litigation.
Complainant alleged that he also reasonably expected his application
would not be processed until after the terms of the settlement between
the agency and union were implemented by the agency. The record reflects
that the agency's own time-line lists June 8, 2004 as the last day for
VER offer packages to be delivered to employees found to be eligible.
Complainant alleged that he had no reason to suspect a retaliatory motive
before June 8, 2004. Complainant alleged that because he had a reasonable
belief that any notification from the agency would be delayed because mail
sent to his prior Pomona, California address was to be forwarded to his
current Louisiana address, a reasonable suspicion would not have arise
until after June 8, 2004 due to delay in the mail-forwarding system.
Based on the foregoing, we find that complainant's EEO Counselor
contact was within the 45-day limitation period set by the regulations.
Specifically, we find that the agency has not met its burden of
showing that complainant's reasonable suspicion arose before July 29,
2004. Therefore, we find that the agency improperly dismissed claim (2)
on the grounds of untimely EEO Counselor contact.
Claim (2) - Failure to state a claim
We further find that the agency improperly dismissed claim (2) on the
alternative grounds of failure to state a claim, finding that the claim
constitute a collateral attack on the OPM process. 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
unemployment compensation process, or the workers' compensation process.
See, e.g., Fisher v. Dep't of Defense, EEOC Request No. 05931059 (July
15, 1994) (challenge to agency's appeal within the workers' compensation
process fails to state a claim as an EEO complaint); Lingad v. United
States Postal Service, EEOC Request No. 05930106 (June 23, 1994)
(challenge to evidentiary ruling in grievance process fails to state a
claim as an EEO complaint).
A fair reading of the formal complaint, and related materials on the
record, reveals that complainant is not challenging a determination
by OPM or the agency's actions within the OPM adjudicatory process.
Rather, complainant is alleging that the agency failed to respond to
his application for VER in a timely manner. The Commission determines
that the complaint addresses an alleged personal loss or harm to a
term, condition, or privilege of complainant's employment. See Diaz
v. Department of the Air Force, EEOC Request No. 05931049 (April 21,
1994).
CONCLUSION
Based on the foregoing, we VACATE the agency's finding of no
discrimination concerning claim (1) and REMAND claim (1) for an adequate
investigation in accordance with the Order below. Further, the agency's
dismissal of claim (2) on the grounds of untimely EEO Counselor contact
and failure to state a claim is REVERSED. Claim (2) is REMANDED to the
agency for further processing in accordance with this decision and the
Order of the Commission, below.
ORDER
The agency is ordered to process the remanded claims in accordance
with 29 C.F.R. � 1614.108 and the foregoing decision. 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.
As part of its processing, the agency shall obtain all documentation
necessary to determine whether Personnel received a form from complainant
concerning a change of address for his Louisiana address. The agency
shall obtain documentation including, but not limited to, all relevant
documentation concerning the change of address and official notifications
concerning unsatisfactory attendance and unscheduled leave; and affidavits
from Personnel officials with knowledge of the circumstances surrounding
complainant's change of address.
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 (K0408)
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, D.C. 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 (M0408)
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 77960,
Washington, D.C. 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 (R0408)
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 (Z0408)
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
December 24, 2008
Date
1 The record reflects that the December 23, 2004 Notice of Removal
contained complainant's Pomona, California Post Office Box mailing
address.
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2
0120083494
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 77960
Washington, D.C. 20013
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0120083494