0120122398
09-12-2013
Hou Hsu, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Pacific Area), Agency.
Hou Hsu,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 0120122398
Agency No. 4F940008111
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision (Dismissal) dated March 29, 2012, 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Letter Carrier at the Agency's Sunnyvale Station facility in Sunnyvale, California. On September 7, 2011, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (Asian), national origin (Chinese), sex (male), disability (hands and back), age (64 years at time of incidents), and reprisal for prior protected EEO activity under an EEO statute that was unspecified in the record when:
1. Before or after [sic] June 16, 2011, Complainant was denied a 204B position;
2. On June 16, 2011, agency officials disclosed Complainant's private Office of Worker's Compensation Programs (OWCP) information to a coworker;
3. The Postmaster failed to respond to Complainant's October 18, 2011, letter to resolve a past due payment from 2010 and 2011;
4. On an unspecified date in 2011, money was taken from the complainant's retirement plan;
5. On an unspecified date, Complainant was charged annual leave but was not paid for it;
6. On an unspecified date, Complainant was charged sick leave but was not paid for it;
7. On October 24, 2011, management made a false claim in an attempt to force complainant to pay money back to the USPS; and
8. On December 14, 2011, Complainant was not provided a suitable, full-time job offer.
The Agency dismissed claims 1, 4, and 8 for stating the same claims that had previously been decided by the Agency and the Commission. The Agency dismissed claims 5 and 6 for failure to cooperate. The Agency found that claim 3 should more accurately be viewed as a claim alleging denial of official time, and further found that the matter had been appropriately addressed. With regards to claims 2 and 7, the Agency dismissed the claims as constituting a collateral attack on the OWCP process and the Debt Collection Act process.
ANALYSIS AND FINDINGS
Same Claim as Previously Raised Claims
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides that the Agency shall dismiss a complaint that states the same claim that is pending before or has been decided by the agency or Commission. It has long been established that "same" does not mean "similar." The Commission has consistently held that in order for a complaint to be dismissed as identical, the elements of the complaint must be identical to the elements of the prior complaint in time, place, incident, and parties. See Jackson v. Department of the Air Force, EEOC Appeal No 01955890 (April 5, 1996), rev'd on other grounds, EEOC Request No. 05960524 (April 24, 1997).
The Agency found that, with regard to claims 1 and 8, Complainant was stating the same claims that had been previously raised before the Agency and the Commission. The Agency noted that on November 20, 2007 Complainant filed a formal complaint under Agency No. 4F-940-0011-08 alleging, among other things, that since October 12, 2007 the Agency has refused to allow him to work and he has been without pay. The Agency further noted that on July 31, 2010, Complainant filed another formal complaint under Agency No. 4F-940-0109-10 wherein he alleged that since November 11, 2009 he has been, among other things, denied the right to bid on a route. Complainant requested a hearing and an EEOC Administrative Judge (AJ) issued a decision dated November 4, 2011 dismissing the complaint on the grounds that the matters had been previously raised. Complainant appealed and the Commission affirmed the AJ's finding. See Hsu v. USPS, EEOC Appeal No. 0120120944 (April 12, 2012). Complainant then filed another formal complaint on November 8, 2010 under Agency No. 4F-940-0007-11 alleging, among other things, that he was not provided a 204B position (Agency case No. subsequently changed to 4F-940-0016-11). The Agency dismissed the claim on the grounds that it stated the same claim as a previously-raised claim and following an appeal, the Commission affirmed. See Hsu v. USPS, EEOC Appeal No. 0120111352 (June 28, 2011), Request for Reconsideration Denied, EEOC Request No. 0520110660 (January 23, 2012).
In the current complaint, the Agency found that upon being questioned by the investigator, Complainant averred that "I have been denied the 204B position since 2007 to the present" and concluded that Complainant was therefore stating the same complaint raised in case No. 4F-940-0011-08 as well as in case No. 4F-940-0016-11.
With regards to claim 4, the Agency found that Complainant was actually re-phrasing claim 1, sating:
this matter appears to be a form of 'harm' incurred as a result of Complainant being denied work, specifically that the denial of work has negatively impacted contributions made towards his TSP. Such a harm does not state a claim in and of itself; rather the 'claim' is the action (i.e. denial of work) that allegedly led to the harm. As per the above discussion, however, Complainant has already raised the issue of being denied work.
We note that while the Commission has held that in order for a complaint to be dismissed as identical, the elements of the complaint must be identical to the elements of the prior complaint in time, place, incident, and parties, see Jackson, EEOC Appeal No 01955890, Complainant has not provided sufficient information to enable a fact-finder to determine whether or not the claims are new or identical to the old claims. In his Formal Complaint, Complainant merely alleged "Not offered the position of 204B supervisor." He included a statement alleging "Before and after 6-16, 2011 labor depart my hearing job offer supervisor . . . and Postmaster keep their lie to labor department didn't provide a suitable 204B job for me but they gave 204 B job to female young and disqualify clerk." During the investigation, when Complainant was asked "On what specific date or over what period of time have you denied [sic] a 204B position?" his reply was "I have been denied the 204B position since 2007 to present. Additionally, this information can be found in the report of investigations, brief in support of appeals, medical flies, pre & formal complaints, and personnel files, all of which is already in the Agency's possession." Report of Investigation (ROI) Affidavit A-1, p. 5.
On appeal, Complainant maintains that he is alleging new claims, but then provides no details or information to substantiate such a contention. Considering Complainant's reference to 2007 and his failure to specify how the instant claims differ from the earlier-raised claims, we find that the Agency correctly found that the claims were identical to previously-raised claims.
With regard to claim 4, the Agency found that Complainant was really referring to the fact that he had been denied work and hence his retirement account had been underfunded and hence the claim was essentially a claim of denial of work which had already been addressed in claims 1 and 8. A review of the record shows that Complainant does indeed mention the loss of TSP contributions. Specifically, Complainant averred that "It was huge [sic] amount money [sic] including my many years salary and my annual leaves [sic] and sick leaves [sic] and 401 K and compensatory damage by continue [sic] retaliation and hostile and discrimination since 1999. I didn't get any regular salary income after 9-8, 2010. It was suffering daily months and years." ROI, Affidavit A2, p. 2, Answer 11.
In addition, in Answer 14, Complainant states "It was single out [sic] me as retaliation target to take away my money without my permission. I didn't see any other employees had such worse treatment by them. 401 K was my personal account. It was my money. It was against law to do that. It was the way they created and designed way to hurt me since 1999" and in Answer 15 he states "It was took away on my 7-01, 2011 to 9-30, 2011 TSP statement. Total was $35.43" In Answer 16 he states "My TSP" and in Answer 19 he states "TSP money was my money." Such responses, however, are difficult to place into meaningful context and a review of the record does not clarify to what Complainant is referring. The questions are listed on one sheet and numbered 1 through 60, while Complainant's answers are on another sheet. The numbering of the responses, however, does not match up with the numbering of the questions. Specifically, while Answers 11 through 19 address Complainant's allegation that money was taken, Questions 11 through 19 are essentially foundational questions asking about Complainant's disability and do not address money at all. See ROI, Affidavit A2. On appeal, Complainant has not specifically disputed the Agency's finding that his claim that money was taken from his retirement plan is more accurately characterized as a claim of being denied work and thus already addressed in claims 1 and 8.
Collateral Attack
With regard to claims 2 and 7, the Agency found that such claims constituted collateral attacks against the Office of Worker's Compensation Programs (OWCP) system and the Debt Collection Act respectively. The Commission has held that an employee cannot use the EEO complaint process to lodge a collateral attack on another proceeding. See Wills v. Department of Defense, EEOC Request No. 05970596 (July 30, 1998); Kleinman v. United States Postal Service, EEOC Request No. 05940585 (September 22, 1994); Lingad v. United States Postal Service, EEOC Request No. 05930106 (June 25, 1993). The proper forum for Complainant to raise his challenges to the Agency's OWCP and Debt Collection Act actions are generally within those proceedings themselves. Hence, we find that Complaint's claims do not state a claim.
Failure To Cooperate
With regards to claims 5 and 6, wherein Complainant alleges that he was charged sick leave and annual leave and not paid for either, the Agency dismissed both claims pursuant to 29 C.F.R. � 1614.107(a)(7) for failure to cooperate. The Agency found that it had advised Complainant in its letter of acceptance that he had provided "very little information regarding these matters. Accordingly we are unable to determine if they are associated with issues alleged in his prior complaints or if they are otherwise subject to dismissal in accordance with 29 C.F.R. � 1614.107(a)." The Agency further noted that when asked to provide specific information regarding the dates or period of time he was charged annual leave and/or sick leave without being paid, how many hours of each he was charged and what his leave balance was thereafter, Complainant failed to provide such specific information, instead stating that the information could be found "in my pay stub" without specifying which pay stub or stubs. On appeal, Complainant has not provided any additional specific information regarding his sick and annual leave.
The Commission has held that an agency should not dismiss a complaint when it has sufficient information upon which to base an adjudication. See Ross v. USPS, EEOC Request No. 05900693 (August 17, 1990); Brinson v. USPS, EEOC Request No. 05900193 (April 12, 1990). It is only in cases where a complainant has engaged in delay or contumacious conduct and the record is insufficient to permit adjudication that the Commission has alleged a complaint to be dismissed for failure to cooperate. See Card v. USPS, EEOC Request No. 05970095 (April 23, 1998); Kroten v. USPS, EEOC Request No. 0590451 (December 22, 1994). The Agency maintains that because of Complainant's refusal to provide specific answers, the record is insufficient to permit adjudication of the claims. Following a review of the record, we agree that, while the record does not appear to show Complainant engaged in contumacious conduct, by not providing specific dates or the specific period of time during which he was charged annual and/or sick leave, the number of hours charged, what his leave balance was thereafter, Complainant has engaged in delay and has rendered the record insufficient to permit adjudication of the claims.
Denial of Official Time
The Dismissal determined that claim 3 was more accurately viewed as a claim alleging denial of official time. While Complainant characterized the claim as a denial by the Postmaster to respond to Complainant's October 18, 2011, letter to resolve a past due payment from 2010 and 2011, the Agency noted that, when Complainant was asked to identify the specific dates in 2010 and 2011 for which payment was past due, Complainant's response was "see Exhibit 1." The Dismissal further noted that "Exhibit 1" contained a letter1 from Complainant to management officials wherein Complainant contends he was denied official time to process his EEO complaint. The Dismissal further noted the Agency responded to Complainant in compliance with the requirements of Management Directive 110 (MD 110). The record shows that Complainant was sent a letter, dated December 15, 2011, wherein it was pointed out that even though Complainant "did not specify when you claim you were entitled to EEO time and what for" he had been granted less than half an hour in 2007, eight hours in 2008, less than a quarter of an hour in 2009, almost one hour in 2010, and three quarters of an hour in 2011. In addition, an affidavit by a management official maintains that Complainant was given two full days of official time on November 15 and 16, 2011, for the hearing before the AJ. Finally, the affidavit notes that Complainant was in Leave Without Pay (LWOP) status in May, June and July of 2011. On appeal, Complainant has not addressed this issue and has not shown why the time granted (almost one hour in 2010 and almost seventeen hours in 2011) was insufficient, especially in view of the fact that some of the allegations are the same as earlier-made allegations and hence could not have required much time to prepare.
CONCLUSION
The Dismissal is AFFIRMED.
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 (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 (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
September 12, 2013
__________________
Date
1 We note that the letter is dated October 10, 2011 and contains a date-stamp dated October 17, 2011.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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