0120180065
12-21-2017
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Glenna D.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 0120180065
Agency No. 4F900028717
DECISION
Complainant timely appealed with the Equal Employment Opportunity Commission ("EEOC" or "Commission") from the Agency's September 5, 2013, dismissal of 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. and Section 501 of the Rehabilitation Act of 1973 ("Rehabilitation Act"), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was employed as a City Carrier Assistant (Q-01) at the Bell Gardens Post Office in Bell Gardens, California.
On August 16, 2017, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of disability (physical) and reprisal for prior protected EEO activity (filing the instant complaint) when:
1. Since June 2, 2017, her Continuation of Pay ("COP") payments have been incorrect; and
2. On or around June 2, 2017, she was injured while working and the accident that caused her injury occurred due to the "line of travel" management made her use to deliver her route.
On June 2, 2017, while delivering mail on her assigned line of travel, complainant was hit by a car and suffered a traumatic injury. Complainant's first level supervisor, the Supervisor, Customer Services ("S1") and her second level supervisor, the Postmaster ("S2") both came to visit her in the hospital. They sat with Complainant's family for about 30 minutes, but were unable to visit with Complainant because she was in the trauma unit. They returned later that day, but hospital staff informed them that Complainant's family requested no visitors, so they left. That evening, S2 called Complainant, and spoke with her briefly. According to S2, Complainant "sounded really good and the conversation was pleasant despite the circumstances," and the only purpose of her phone call and visits were to show support. S1 stayed in touch with Complainant during her recovery to obtain necessary medical documents so that Complainant received continuation of pay ("COP") through the Office of Workers Compensation ("OWCP") at the Department of Labor.
When Complainant was released from the hospital, her physician provided her with documentation that she was "totally and temporarily disabled" which she submitted to S1. Complainant alleges that she was "continuously harassed" and there are disputes over whether she submitted the necessary documentation. According to S1, he contacted Complainant multiple because he did not receive the CA-17 until June 26, 2017. Meanwhile, the Agency was requesting a "91 statement" from Complainant for its internal investigation of the accident. A July 3, 2017 letter of advisement from S2 to Complainant's non-legal representative repeated the request for the 91 statement, and requested yet more medical documentation, to insure Complainant was paid and that her absence was properly recorded so she was not marked as AWOL and her leave was not depleted. In his July 6, 2017 response to S2, Complainant's representative denied S2's requests and stated, among other things, "[p]lease be advised, your appearance at [the] hospital and forcing [Complainant] to provide [a] statement when she was under strong medication won't be left unnoticed," likening S2's visit to harassment or bullying. The letter also disputed Complainant's COP checks, which reflected pay for only 26.9 hours per week. The Agency's Human Resources Specialist ("HR"), the amount did not include overtime, and was calculated based on the average hours worked over Complainant's 44 weeks of employment. However, Complainant contends that she was earning "over forty hours a week" at the time of the accident.
Complainant also attributes her accident to negligence by S2 and Agency management because, the Agency handbook provides that management is responsible for authorizing "lines of travel," which are the set mail routes Letter Carriers are required to take when delivering mail. Complainant states that under Agency policy, she was required to follow authorized lines of travel at all times, even though she did not believe her assigned line of travel was safe.
The Agency dismissed Complainant's complaint for failure to state a claim, pursuant to 29 C.F.R. � 1614.107(a)(1).
ANALYSIS AND FINDINGS
In relevant part, 29 C.F.R. � 1614.107(a)(1) provides that 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. See Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994). If complainant cannot establish that he or she is aggrieved, the agency shall dismiss a complaint for failure to state a claim. 29 C.F.R. � 1614.107(a)(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 Serve, EEOC Request No. 05940585 (Sept. 22, 1994); Lingad v. U.S. Postal Serv., EEOC Request No. 05930106 (June 25, 1993). A claim that can be characterized as a collateral attack, by definition, involves a challenge to another forum's proceeding, such as the workers' compensation process.
Claim 1 - Collateral Attack on OWCP
This Commission has generally held that complaints involving other administrative proceedings, including those involving the Office of Workers Compensation Programs ("OWCP") and its related processes, do not state a claim within the meaning of its regulations. See Hogan v. Dep't of the Army, EEOC Request No. 05940407 (Sept. 29, 1994). Our rejection of such claims includes cases like this one; where the claim of harassment is based on the Agency's actions (alleged mishandling of benefit claims) rather than those of OWCP. See Schneider v. U.S. Postal Serv., EEOC Request No. 05A01065 (Aug. 15, 2002) (rejecting complainant's claim that the Agency's delay in processing her OWCP paperwork constituted harassment). Further, we have long held that claims that an agency discriminated in a manner pertaining to the merits of a workers' compensation claim are collateral attacks on another administrative process, thus not actionable under EEOC regulations. For example, in Bell v. Dep't of Transportation, EEOC Appeal No. 01991806 (Jan. 11, 2001), we dismissed a discrimination complaint alleging that the agency submitted inaccurate and incomplete information to the Department of Labor while processing the complainant's OWCP claim. Likewise, in Hogan, we dismissed an allegation that agency officials discriminated against the complainant by providing misleading statements to OWCP. Were we to accept such claims, it would require the Commission to essentially determine what workers' compensation benefits the complainant would likely have received, which is a function of OWCP, not the EEOC.
Here, the record indicates that Complainant's allegation concerning the amount of COP she received arises from her dispute over the number of hours the Agency calculated she worked prior to her injury. As with Bell and Hogan, Complainant's allegation concerns the merits of an OWCP claim, constituting an impermissible collateral attack on another administrative process. For the reasons previously discussed, we are not convinced by Complainant's argument on appeal, that Claim 1 is "not a collateral attack on the [OWCP] process [because] the Agency is responsible for processing the necessary paper[work.]" See Schneider, Hogan, and Bell. Complainant's other main appellate argument, that the Agency has violated the Federal Employees' Compensation Act ("FECA"), literally asks the Commission to enforce regulations that are beyond its jurisdiction. The proper venue for Complainant to raise the allegation in Claim 1, the alleged harassment related to her COP claims, or any alleged violation of FECA, is with the OWCP at the Department of Labor.
Claim 2 - Collateral Attack on OSHA
It is well established that allegations of discrimination relating to workplace safety or an agency's failure to report or comply with workplace safety standards constitute a collateral attack on the administrative processes of the Department of Labor's Occupational Health and Safety Administration ("OSHA"). See Demarcus I. v. United States Postal Serv., Appeal No. 0120161563 (Aug. 12, 2016); Complainant v. United States Postal Serv., Appeal No. 0120151653 (Aug. 14, 2015); Grant-Garrett v. United States Postal Serv., Appeal No. 01A61832 (Jul. 21, 2006). Claim 2, in part, alleges Complainant was subjected to an unsafe work environment, which falls within the purview of OSHA, not the EEOC. If Complainant wishes to pursue her claims related to the health and safety of her working conditions, including requirements related to postal routes and parking points, or alleged retaliation or harassment for refusal to work in unsafe conditions, the proper venue is OSHA at the Department of Labor.
On appeal, Complainant argues that Claim 2 has "nothing to do with OSHA" but rather, it is a matter of Management's "negligence" and failure to adhere to Agency regulations, in accordance with the Agency handbook. Complainant cites specific Agency policies and provides copies of the relevant portions of the Agency's handbook that management violated. Neither policy concerns discrimination, yet Complainant is essentially requesting that the EEOC enforce the Agency's internal policies and regulations on her behalf. Again, this is outside the scope of EEOC authority, and constitutes a collateral attack on another Agency process. The proper venue for pursuing allegations of management's negligence and failure to meet its responsibilities, would be in accordance with the Agency's internal processes, by contacting the USPS Office of the Inspector General ("OIG"), filing grievance through the Agency's negotiated grievance procedure, or as otherwise directed by the Agency handbook.
Compensatory Damages
Complainant's complaint fails to state a claim under 29 C.F.R. � 1614.107(a)(1), because as a collateral attack on other administrative processes, it does not show a harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. (emphasis added) See Diaz, supra. Complainant repeatedly requests compensatory damages, arguing that her injuries and management's alleged conduct related to her injuries qualify her as an "aggrieved employee." However, after careful scrutiny of the record and submissions on appeal, we find that the allegations within Complainant's complaint are not actionable under EEOC regulations. The Commission has held that allegations that fail to state a claim cannot be converted into a viable claim merely because the complainant requests compensatory damages as a remedy. Ulanoff v. United States Postal Serv., EEOC Request No. 05950396 (Jan. 26, 1996); Shrader v. Dep't of Agriculture, EEOC Appeal No. 01961499 (Nov. 3, 1997). In other words, we cannot consider Complainant's requests for compensation because they are based on harm arising from alleged actions that, as we have explained, fall outside EEOC jurisdiction.
CONCLUSION
Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED.
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
December 21, 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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