0120171223_0120171280
07-20-2017
Elene K.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Elene K.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Southern Area),
Agency.
Appeal Nos. 0120171223 & 0120171280
Agency Nos. 4G-780-0207-15, 4G-780-0116-16, 4G-780-0175-16,
4G-780-0005-17 & 4G-780-0031-17
DECISION
Complainant filed two appeals with this Commission. In EEOC Appeal No. 0120171280, Complainant appealed from the Agency's decision dated January 19, 2017, dismissing her complaint, namely Agency No. 4G-780-0031-17, 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. In EEOC Appeal No. 0120171223, Complainant filed an appeal requesting that the Commission reopen Agency No. 4G-780-0207-15 and consolidate the complaints for further processing.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Rover Clerk at the Agency's facility in San Antonio, Texas.
The record indicated that Complainant filed Agency No. 4G-780-0207-15 on October 1, 2015. The matter had been investigated and pending before an Equal Employment Opportunity Commission Administrative Judge (AJ). Pursuant to her request dated March 21, 2016, the AJ dismissed the complaint citing Complainant's notice of withdrawal of Agency No. 4G-780-0207-15.
In Agency No. 4G-780-0116-16, the record indicated that Complainant contacted the EEO Counselor on March 28, 2016. When the matter could not be resolved, Complainant filed a formal complaint alleging discrimination on the basis of sex (female) and in retaliation for prior protected EEO activity under Title VII of the Civil Rights Act of 1964, when:
1. During 2010 through 2012, Complainant was not paid at a higher level pay;
2. In June 2014, Complainant was placed on the wrong pay, annual leave and sick leave scale;
3. On unspecified dates beginning in 2014, Complainant was denied overtime opportunities;
4. On July 2015, Complainant was placed in an off duty without pay status;
5. On unspecified dates, Complainant was not paid Family Medical Leave Act (FMLA) sick leave or for holidays.
6. On unspecified dates, Complainant was dropped from her husband's insurance and paying for a different insurance; and
7. On unspecified dates, Complainant's prior EEO complaint, Agency No. 4G-780-0207-15, was closed early.
The record indicated that the Agency issued a final decision on June 16, 2016, dismissing the complaint as a whole. Complainant did not file an appeal on the Agency's June 16, 2016 decision dismissing the complaint. Complainant merely asked that the matter be consolidated with the other complaints.
In Agency No. 4G-780-0175-16, Complainant alleged discrimination on the basis of reprisal in violation of Title VII of the Civil Rights Act of 1964 when:
8. On unspecified dates, Complainant was not paid Family Medical Leave Act (FMLA) sick leave or for holidays.
9. On unspecified dates, Complainant was dropped from her husband's health insurance.
10. Complainant's prior EEO complaint, Agency No. 4G-780-0207-15, was closed early.
11. In June 2014, Complainant was placed on the wrong pay, annual leave and sick leave scale.
Complainant filed this formal complaint on August 16, 2016. The Agency issued a final decision dismissing the complaint as a whole on September 21, 2016. We note that Complainant did not file an appeal regarding the Agency's final decision.
On October 5, 2016, Complainant contacted the EEO Counselor alleging discrimination. The matter was docketed as Agency No. 4G-780-0005-17. The record indicated that Complainant was issued a Notice of Right to File a Formal Complaint on November 9, 2016. The Agency noted that Complainant did not file her formal complaint. As such, the matter was administratively closed.
On December 24, 2016, Complainant filed a formal complaint, Agency No. 4G-780-0031-17, alleging that the Agency subjected her to discrimination on the bases of disability and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when, (12) on unspecified dates, she became aware that her PS Form 50 stated that she was not on FMLA sick leave and she was charged with five months of leave without pay.
The Agency dismissed Agency No. 4G-780-0031-17 pursuant to 29 C.F.R. � 1614.107(a)(1) for stating the same claim in Agency Nos. 4G-780-0207-15, 4G-780-0116-16, and 4G-780-0175-16. The Agency also noted that Complainant alleged discrimination based on the Agency's failure to comply with FMLA. The Agency indicated that the complaint should also be dismissed pursuant to 29 C.F.R. � 1614.107(a)(1) for alleging a collateral attack. Finally, the Agency indicated that Complainant failed to raise her claim in a timely manner and dismissed it pursuant to 29 C.F.R. � 1614.107(a)(2).
As indicated above, Complainant filed two appeals. In EEOC Appeal No. 0120171280, Complainant appealed from the Agency's decision dated January 19, 2017, dismissing Agency No. 4G-780-0031-17. In addition, Complainant filed EEOC Appeal No. 0120171223, requesting the Commission reinstate her complaint alleged in Agency No. 4G-780-0207-15 and to consolidate her other complaints and order the Agency to process these complaints of discrimination.
The Agency asserted that Complainant has tried to resurrect the complaint she withdrew which was pending before the AJ. Further, the Agency has disposed of the complaints properly and that the Commission should affirm its dismissal decisions.
ANALYSIS AND FINDINGS
As an initial matter, we find that Complainant filed an appeal, EEOC Appeal No. 0120171280, regarding the Agency's dismissal of Agency No. 4G-780-0031-17. In addition, Complainant filed documents requesting that the Commission reinstate her complaints including Agency No. 4G-780-0207-15 which was docketed as EEOC Appeal No. 0120171223. Complainant asked that the Commission remand Agency No. 4G-780-0031-17 for further processing and consolidate her prior EEO complaints which have been previously dismissed by the Agency or withdrawn by Complainant. Based on our review, we find that the two appeals should be consolidated into the instant decision.
We shall first address the Agency's dismissal of Agency No. 4G-780-0031-17. 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. Dep't of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994).
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 Defense , 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). Upon review of the record, the Commission finds that complainant's claim, in essence, is a collateral attack alleging that the Agency failed to properly implement FMLA. The proper forum for Complainant to have raised a challenge to actions which involve FMLA is with the Department of Labor. It is inappropriate to attempt to use the EEO process to address FMLA issues clearly within the jurisdiction of the Department of Labor. See, e.g., Butler v. U.S. Postal Serv., EEOC Appeal No. 0120111282 (June 8, 2011). As such, we find that the Agency's dismissal of Agency No. 4G-780-0031-17 was appropriate.
In EEOC Appeal No. 0120171223, Complainant asked that the Commission reinstate her prior EEO complaints namely Agency Nos. 4G-780-0207-15, 4G-780-0116-16, 4G-780-0175-16, & 4G-780-0005-17. The record indicated that in Agency No. 4G-780-0207-15, Complainant filed her request to withdraw her complaint with the AJ. In addition, in Agency No. 4G-780-0005-17, Complainant was issued a Notice to file a formal complaint. However, she failed to file a formal complaint. We decline to permit Complainant to resurrect the claims she abandoned.
Finally, Complainant also indicated her request to reinstate Agency Nos. 4G-780-0116-16 and 4G-780-0175-16. The Agency provided the complaints files regarding these complaints. The records show that the Agency dismissed these complaints with final agency decisions dated June 16, 2016, and September 21, 2016. Complainant did not specifically appeal the final decisions. The final decisions noted that Complainant had to file an appeal within 30 calendar days. Complainant did not raise the instant matters with the Commission until February 14, 2017, well beyond the 30 day time limit. Complainant has not offered adequate justification for an extension of the applicable time limit for filing his appeal. Accordingly, Complainant's February 14, 2017 appeal of Agency No. 4G-780-0116-16 and 4G-780-0175-16 is untimely and is dismissed. See 29 C.F.R. � 1614.403(c); Complainant v. Dep't of Veterans Affairs, EEOC Appeal No. 0120151485 (July 29, 2015).
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
July 20, 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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2
01-2017-1223
6
0120171223 & 0120171280