0120102792
09-24-2010
Ardrith L. Barnett, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Western Area), Agency.
Ardrith L. Barnett,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Western Area),
Agency.
Appeal No. 0120102792
Agency No. 4E-640-0054-10
DECISION
Complainant filed a timely appeal on June 11, 2010, with this Commission from the Agency's decision dismissing her 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. 1 For the following reasons, the Commission AFFIRMS the Agency's final decision.
BACKGROUND
Complainant filed a complaint dated April 5, 2010, alleging that the Agency subjected her to discrimination on the basis of disability when:
1. On December 30, 2009, Complainant received a letter of demand dated December 16, 2009;
2. On August 27, 2009, Complainant received a letter of demand dated August 24, 2009;
3. The Arbitrator's Decision dated September 2007 has not been fulfilled;
4. On February 10, 2009, Complainant's 3971s for sick leave were not processed;
5. On March 11, 2009, management stated Complainant did not deserve insurance;
6. Complainant was terminated July 2009 and denied overtime;
7. In September 2009, Complainant received a grievant's statement requesting union information;
8. On March 10, 2010, Complainant was contacted that her termination hearing set for March 17, 2010, was postponed because of the Arbitrator's illness;
9. Several years ago Complainant was informed that his personnel file was missing; and
10. On unspecified dates management used Verizon and cable companies as tracking to spy on Complainant.
The Agency dismissed issues (1) - (6) pursuant to 29 C.F.R. � 1614.107(a)(1), for stating the same claim that is pending before or has been decided by the Agency or Commission. Specifically, the Agency noted that issues (1) - (6) were raised in Agency Case Nos. 4E-640-0012-09, 4E-640-0122-07, 4E-640-0046-08, and 4E-640-0091-09.
The Agency dismissed issues (3), (7), and (8) pursuant to 29 C.F.R. � 1614.107(a)(1), for failure to state a claim. Specifically, the Agency noted that these issues involve matters that are within the grievance/arbitration forum. The Agency stated any challenged to decisions made in the negotiated grievance procedure is through that forum itself.
Additionally, the Agency noted that Complainant did not contact an EEO Counselor until February 11, 2010. The Agency determined that the issues Complainant raised were discrete acts and found that that Complainant failed to timely contact an EEO Counselor with regard to the incidents ranging from February 10, 2009, to August 27, 2009.
The Agency dismissed issues (2) - (9) pursuant to 29 C.F.R. � 1614.107(a)(2), for failure to raise these issues with an EEO Counselor. The Agency noted that issues (2) - (9) did not add to or clarify Complainant's original complaint.
The Agency dismissed issues (5), (7), (8), (9), and (10) pursuant to 29 C.F.R. � 1614.107(a)(1), for failure to state a claim. The Agency noted that these issues were not sufficiently sever or pervasive to constitute harassment. Moreover, the Agency determined Complainant failed to show a harm or loss to a term, condition, or privilege of employment.
ANALYSIS AND FINDINGS
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 "identical" 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. Dep't of the Air Force, EEOC Appeal No 01955890 (April 5, 1996) rev'd on other grounds EEOC Request No. 05960524 (April 24, 1997).
The record reveals that in EEOC Appeal No. 0120102237 (September 2, 2010) (Agency Case No. 4E-640-0091-09), Complainant claimed she was discriminated against, among other bases, based on disability when on February 10, 2009, she was denied the opportunity to use sick leave; in August 2009, she was notified she owes the Agency compensation for leave buy back; in May 2009 and continuing, her health insurance has not been reinstated; in July 2009, she received a Notice of Removal. In the present case, the record reveals Complainant is claimed that she was discriminated against when she received an August 24, 2009 letter of demand; on February 10, 2009, her 3971s for sick leave were not processed; in March 2009, management stated she did not deserve health insurance; and Complainant was terminated in July 2009. We note that Complainant did not specifically raise issue (1), concerning a December 16, 2009 letter of demand in her prior complaint. However, the record reveals that the December 16, 2009, letter of indebtedness is a followup to the August 24, 2009 letter of indebtedness, which was clearly raised in Agency Case No. 4E-640-0091-9, and thus, we find issue (1) is intertwined with the issue of the August 24, 2009 letter of demand. Accordingly, we find the Agency properly dismissed issues (1), (2), (4), (5), and part of issues (6) concerning Complainant's July 2009 removal as stating the same claim previously raised by Complainant in Agency Case No. 4E-640-0091-09.
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. Dep't 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.
We note that in issue (6), Complainant alleged that she was denied overtime. The record reveals that Complainant was terminated on July 24, 2009, and thus, we find her claim that she was denied overtime occurred at the latest on July 24, 2009. The record reveals Complainant did not initiate EEO Counselor contact until February 11, 2010, which was beyond the applicable limitations period. On appeal, Complainant has presented no persuasive arguments or evidence warranting an extension of the time limit for initiating EEO Counselor contact. Thus, we find Complainant's denial of overtime was properly dismissed for untimely EEO Counselor contact.
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 Defense, EEOC Request No. 05970596 (July 30, 1998); Kleinman v. U.S. Postal Service, EEOC Request No. 05940585 (September 22, 1994). The proper forum for complainant to have raised challenges to actions which occurred during the arbitration proceeding was at that proceeding itself. It is inappropriate to now attempt to use the EEO process to collaterally attack actions which occurred during the arbitration process. Thus, we find the Agency properly dismissed issues (3), (7), and (8) as raising a collateral attack on the arbitration/grievance process.
We find the Agency properly dismissed issues (9) and (10) for failure to state a claim. We find that these issues are not sufficiently severe or pervasive to constitute a hostile work environment. Moreover, we find Complainant failed to show that she suffered a harm or loss to a term, condition, or privilege of employment.
CONCLUSION
Accordingly, the Agency's decision dismissing Complainant's complaint 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 24, 2010
__________________
Date
1 Although the Agency's final decision did not have a date, the record reveals Complainant received the final decision on May 12, 2010.
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0120102792
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120102792