0120103726
02-10-2011
Emily L. Cannon, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Southeast Area), Agency.
Emily L. Cannon,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Southeast Area),
Agency.
Appeal No. 0120103726
Agency No. 1H336007810
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated August 19, 2010, 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.
BACKGROUND
At the time of the events giving rise to this matter, Complainant was
employed as a Mail Handler at the Agency's Tampa, Florida, Logistics and
Distribution Center. In a complaint dated July 31, 2010, Complainant
alleged that the Agency subjected her to discrimination on the bases of
race (Caucasian), sex (female), disability (pregnancy),1 and reprisal.
The Agency, characterizing the issue in the complaint as a June 21,
2010 denial of Family and Medical Leave Act (FMLA) leave, dismissed the
complaint pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a
claim, asserting the complaint was a collateral attack on the FMLA process
governed by the U.S. Department of Labor. The instant appeal followed.
ANALYSIS AND FINDINGS
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).
However, we find in this case Complainant is not collaterally attacking a
decision rendered in another adjudicatory process. Rather, we find that
the Agency over-simplified the issue raised in the complaint in justifying
its dismissal as a collateral attack on the FMLA decision-making process.
A fair reading of the complaint and related EEO counseling report reveals
that that Complainant was actually alleging that she was required to
apply for FMLA leave, which was subsequently denied, and charged with an
"unscheduled" absence during her six-week maternity leave unlike other
similarly situated employees. She also alleges that she was required
to apply for light duty during her pregnancy, while other employees did
not have to. Among other things, Complainant alleged she was treated
differently in retaliation for another pregnancy discrimination complaint
she had filed the year before. These allegations are sufficient to
state a viable claim of disparate treatment under to administrative EEO
complaints process.
Accordingly, the Agency's final decision dismissing Complainant's
complaint is REVERSED and the matter is REMANDED to the Agency for
further processing in accordance with the following Order.
ORDER (E0610)
The Agency is ordered to process the remanded complaint (as described
earlier in this decision) in accordance with 29 C.F.R. � 1614.108 et seq.
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.
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 (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 (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
February 10, 2011
__________________
Date
1 Pregnancy is not recognized as a disability under the Rehabilitation
Act. Instead, discrimination based on pregnancy is prohibited by the
Pregnancy Discrimination Act of 1978, an amendment to Title VII.
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0120103726
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120103726