Karen Wiley, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionNov 17, 2004
01A42412_r (E.E.O.C. Nov. 17, 2004)

01A42412_r

11-17-2004

Karen Wiley, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Karen Wiley v. United States Postal Service

01A42412

11/17/2004

.

Karen Wiley,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A42412

Agency No. 4G-780-0239-03

DECISION

Complainant filed a timely appeal with this Commission from the final

agency decision dated January 30, 2004, dismissing her formal 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.

On July 15, 2003, complainant initiated EEO Counselor contact.

Informal efforts to resolve her concerns were unsuccessful. In her

formal complaint dated October 31, 2003, complainant alleged that she

was subjected to discrimination on the bases of sex, disability, and in

reprisal for prior EEO activity.<1>

In its final decision dated January 30, 2004, the agency determined that

complainant's complaint was comprised of the following four claims:

On January 8, 2002, March 11, 2002, July 29, 2002, and August 12, 2002,

[complainant's] requests for leave were not acted upon or approved

by management.

On June 26, 2003, [complainant] was scheduled for a meeting/discussion

regarding her ability to return to work. She was told to report on June

30, 2003, or she would be terminated.

On August 29, 2002, [complainant] was not given proper papers to complete

regarding her injury nor allowed to work performing clerk duties.

[Complainant's] request on September 26, 2002, to complete [an] accident

report was not acted upon by management. Complainant was provided

papers a couple of weeks later to complete a CA-2, but not allowed to

get a code number so she could see the [workers'] compensation doctor.

The agency dismissed claims (1), (3), and (4) on the grounds of untimely

EEO Counselor contact. Specifically, the agency stated that the incidents

set forth in claims (1), (3), and (4) occurred more than forty-five days

prior to complainant initiating EEO Counselor contact. In addition,

the agency asserted that there were notices posted at complainant's

facility, setting forth the applicable time limits in the EEO process.

The agency dismissed claim (2) for failure to state a claim. The agency

asserted that the Commission has held that an official job discussion

does not rise to the level of a cognizable claim.

On appeal, complainant states that the agency improperly dismissed her

complaint. Specifically, complainant states that she was unaware of a

time limit for initiating EEO Counselor contact. In addition, complainant

reiterates that she was not allowed to see a workers' compensation doctor.

Claim (1)-Leave Requests

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 she was not notified of the

time limits and was not otherwise aware of them, that she did not know

and reasonably should not have known that the discriminatory matter or

personnel action occurred, that despite due diligence she was prevented

by circumstances beyond her control from contacting the Counselor within

the time limits, or for other reasons considered sufficient by the agency

or the Commission.

The Commission finds that the agency improperly dismissed claim (1) on the

grounds of untimely EEO Counselor contact. On appeal, complainant asserts

that she was unaware of the time limit for contacting an EEO Counselor.

The record contains a signed agency memorandum which appears to be dated

June 27, 2002. Therein, an agency official states that EEO Poster 72

is posted as follows �Tour 1, Tour 2, Tour 3 (MDO, Office, Floor),

Airport Mail Facility, In-[Plant] Support, Transportation and Networks,

[and] Maintenance.�

Moreover, while the memorandum appears to be dated June 27, 2002, the

memorandum does not indicate that the poster was on display at the China

Springs Post Office during the various incident dates listed in claim

(1). The Commission has held that where there is an issue of timeliness,

the agency always bears the burden of obtaining sufficient information to

support a reasoned determination as to timeliness. Williams v. Department

of Defense, EEOC Request No. 05920506 (August 25, 1992). Regarding the

instant claim, the agency has not met this burden.

Claim (2)-Official Discussion

The Commission finds that the agency improperly dismissed claim (2)

for failure to state a claim. The agency asserts that the Commission

has held that an official discussion fails to state a claim; however,

the record reflects that claim (2) does not involve merely an oral

discussion, but a written memorandum. The record contains a copy of a

memorandum from complainant's supervisor dated June 26, 2003, entitled

�Official Discussion-Sick Leave.� Therein, complainant's supervisor

sets forth complainant's failure to provide proper medical documentation

during her absence from work and instructs complainant to report to work

on June 30, 2003. The letter concludes by stating that if complainant

does not report to work, she may be subject to dismissal. The Commission

determines that this document constitutes a written counseling memorandum

and therefore claim (2) states a cognizable claim.

Claim (3)-Failure to Provide Complainant with Proper Paperwork and Denial

of Clerk Duties

The Commission finds that the agency improperly dismissed claim (3) for

untimely EEO Counselor contact. The agency improperly dismissed claim

(3) for the reasons set forth in claim (1).

Claim (4)-Failure to Complete Accident Report and Denial of Workers'

Compensation Doctor

While the agency dismissed claim (4) for untimely EEO Counselor contact,

we find that this claim is more properly analyzed as to whether it

states a claim. The Commission finds that claim (4) constitutes a

collateral attack on the workers' compensation process. 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 have raised her challenges

to actions which occurred as part of the workers' compensation process

is with the Office of Workers' Compensation. It is inappropriate to

now attempt to use the EEO process to collaterally attack actions which

occurred during the workers' compensation process.

Accordingly, the Commission AFFIRMS the agency's decision dismissing claim

(4), for the reasons stated herein. However, the Commission REVERSES

the agency's decision dismissing claims (1), (2), and (3) and REMANDS

these matters to the agency for further processing in accordance with

the ORDER below.

ORDER (E0900)

The agency is ordered to process the remanded claims in accordance with

29 C.F.R. � 1614.108. 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.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)

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 19848,

Washington, D.C. 20036. 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 (M0701)

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 19848,

Washington, D.C. 20036. 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 (T0900)

This decision affirms the agency's final decision/action in part, but it

also requires the agency to continue its administrative processing of a

portion of your complaint. 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 on both that portion

of your complaint which the Commission has affirmed and that portion

of the complaint which has been remanded for continued administrative

processing. 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 your appeal with the Commission, until

such time as the agency issues its final decision on your complaint.

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 (Z1199)

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

11/17/2004

Date

1The Commission notes that in its final

decision, the agency stated that its records do not indicate that

complainant had engaged in prior EEO activity; however, the agency did

not expressly dismiss the basis of reprisal.