0120180314
01-12-2018
Ty S.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Great Lakes Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Ty S.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.
Appeal No. 0120180314
Agency No. 4J530011117
DECISION
Complainant timely appealed to the Equal Employment Opportunity Commission ("EEOC" or "Commission") from the Agency's September 27, 2017 dismissal of his complaint of unlawful employment discrimination in violation of 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 worked as a City Letter Carrier (PS-01) at the Agency's Barrington Post Office facility in Barrington, Illinois.
On September 11, 2017, Complainant filed a Formal Complaint alleging that the Agency subjected him to discrimination on the basis of disability (physical) when:
On June 23, 2017, Management told him that his leave would not be coded as Family Medical Leave Act ("FMLA") because his FMLA case was invalid, and then implied that he might not get paid.
On June 19, 20, and 21, 2017, Complainant called out of work, using his previously approved FMLA leave. Complainant alleges that upon his return on June 23, 2017, the Postmaster ("P1"), directed him to meet her in her office, where she informed him that his FMLA claim was invalid, and that he had to provide additional documentation since he was absent three days in a row. Complainant attempted to explain that his FMLA claims were valid and his paperwork was up to date, but alleges that P1 did not appear to believe him. Complainant further alleges, based on his conversations with FMLA Coordinators that day, that P1 could easily access and personally verify his FMLA status, had she checked. Instead, Complainant alleges that P1 "threatened" that she would mark his absence as regular sick leave instead of applying FMLA, when submitting his attendance for payroll, which meant he would not be paid for three days that pay period. According to Complainant, during the meeting, P1 crossed her arms, spoke in a tone that he understood was meant to intimidate him, and acted rude by pointing at the chair where she wanted Complainant to sit, and answering phone calls when Complainant asked her questions.
The matter was promptly resolved by FMLA Coordinators and the Agency. Complainant's FMLA leave was reported correctly for payroll, and he was not required to submit additional documentation, as he already had valid FMLA documents on file with the Agency. However, Complainant alleges that P1 "singled [him] out" for submitting an FMLA leave request. Complainant identifies several individuals who he contends were granted FMLA leave by P1 for multi-day absences without being subjected to the same alleged harassment. Complainant also argues that the EEO investigation was flawed.
The Agency dismissed Complainant's complaint pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim. Specifically, the Agency found that Complainant was using the EEO process to lodge an impermissible collateral attack on the FMLA process. Alternately, the Agency found Complainant did not demonstrate the requisite harm required for a viable claim of discrimination as he was never denied FMLA leave, and his attendance record and pay were not affected. The instant appeal followed.
ANALYSIS AND FINDINGS
Under the regulations set forth at 29 C.F.R. Part 1614, an agency shall accept a complaint from an 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). 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).
Collateral Attack
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. United States Postal Serv., EEOC Request No. 05940585 (Sept. 22, 1994); Lingad v. United States Postal Serv., EEOC Request No. 05930106 (Jun. 25, 1993). A claim that can be characterized as a collateral attack, by definition, involves a challenge to another forum's proceeding, including challenges to decisions pertaining to the Family and Medical Leave Act ("FMLA") Stensgard v. United States Postal Serv., EEOC Appeal No. 0120122478 (Sept. 26, 2012) (finding a claim challenging denial of FMLA rights to be a collateral attack on the FMLA process, which is regulated by the Department of Labor, and outside the jurisdiction of the EEOC).
However, we have previously upheld discrimination allegations where the Complainant is challenging the acts of an Agency manager rather than the decision of an adjudicatory body. Ramsey v. United States Postal Service, EEOC Appeal No. 07A10080 (July 18, 2003) (discrimination found regarding the Agency's denial of an FMLA leave request). For instance, a
complainant alleging that her manager treated her differently than others by refusing to approve her sick leave requests as FMLA-protected stated a claim. See Allene R. v. United States Postal Serv., EEOC Appeal No. 0120160434 (Jan. 28, 2016) (reversing the agency's finding of impermissible collateral attack on the FMLA process) reconsideration denied EEOC Request No. 0520160206 (Sept. 8, 2016). Likewise, we determined that a complainant's allegation that her supervisor's request for more information regarding her FMLA leave request "was given to [her] last minute and was done deliberately to cause [her] a great deal of stress thus continuing his harassment of [her]" may be included within a harassment complaint. See Complainant v. Dep't of the Army, EEOC Appeal No. Appeal No. 0120150845 (May 1, 2015) (reversing the agency's finding of impermissible collateral attack on the FMLA process).
By Complainant's own account in the notes accompanying his formal complaint, emails in the record from both Agency and FMLA personnel, and FMLA records obtained through the Freedom of Information Act ("FOIA"), furnished by Complainant on appeal, the matters of the validity of his FMLA documentation, and of P1 granting his FMLA requests were properly resolved through FMLA processes. Complainant further explains that his EEO complaint only concerns "how [he] was treated with regard to his FMLA request." Complainant's allegation that P1 "singled him out" for "harassment" in response to his FMLA request raises a claim of harassment on the basis of disability. Therefore, the Agency erred when it dismissed Complainant's claim as an impermissible collateral attack on the FMLA process.
Harassment
In Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 (1993), the Supreme Court reaffirmed the holding of Meritor Savings Bank v. Vinson, 477 U.S. 57, 67 (1986), that harassment is actionable if it is sufficiently severe or pervasive to alter the conditions of the complainant's employment. Thus, not all claims of harassment are actionable. Complainant describes a single meeting with P1, which, while stressful and unpleasant, appears to be an isolated incident. We have repeatedly found that a few isolated incidents of alleged harassment, such as P1's alleged threat not to record Complainant's FMLA leave for payroll and her alleged rude demeanor during the June 23, 2017 meeting are usually insufficient to state a claim. See Phillips v. Dep't of Veterans Affairs, EEOC Request No. 05960030 (July 12, 1996) (finding allegations that a supervisor "verbally attacked" complainant on one occasion, attempted to charge him with AWOL, and disagreed with the time the complainant entered into a sign-in log, were insufficient to state a harassment claim); see also Banks v. Dep't of Health and Human Services, EEOC Request No. 05940481 (Feb. 16, 1995) (finding allegations that on one occasion a supervisor threw a file on the complainant's desk and berated her in a loud voice in the presence of other employees insufficient to state a harassment claim).
The instant complaint, comprised a few isolated incidents of alleged harassment, fails to state a harassment claim. Moreover, such a meeting constitutes a "common workplace occurrence" which does not constitute harassment, even if done in a confrontational manner. See Carver v. United States Postal Serv., EEOC Appeal No. 01980522 (Feb. 18, 2000). Finally, to the extent that Complainant alleged that he was treated less favorably than other employees, he has not alleged incidents sufficiently severe or pervasive to assert a viable harassment claim.
Dissatisfaction with the EEO Process
Under 29 C.F.R. � 1614.107(a)(8), a complaint alleging dissatisfaction with the processing of a previously filed complaint must be dismissed. Complaints about the processing of existing complaints should be referred to the agency official responsible for complaint processing, and/or processed as part of the original complaint. EEOC Management Directive for 29 C.F.R. Part 1614 (EEO-MD-110), Chap. 5 � IV.D, page 5-26 (Aug. 5, 2015).
On appeal, Complainant asserts his dissatisfaction with Agency's EEO investigation of his complaint, including its alleged failure to include a copy of an email that P1 referenced in her interview with the EEO Counselor in the record, the EEO Counselor's characterization of his claims in the record, and the Agency's failure to include several pages of notes when it forwarded his formal complaint. The record reveals that Complainant properly raised these matters with the Agency official responsible for complaint processing, and that he received a formal response on November 9, 2017. The response thoroughly addresses Complainant's concerns, and we see no evidence of deficiencies in the investigation.
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
January 12, 2018
__________________
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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