0120121878
10-16-2012
Dawn M. Woodruff, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southwest Area), Agency.
Dawn M. Woodruff,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southwest Area),
Agency.
Appeal No. 0120121878
Agency No. 4G-335-0034-12
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated February 15, 2012, dismissing a 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.
BACKGROUND
During the period at issue, Complainant worked as a City Carrier at the Agency's Clearwater Post Office/Cleveland Station in Clearwater, Florida.
On February 6, 2012, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency subjected her to discrimination in reprisal for prior protected activity.
On February 15, 2012, the Agency issued a final decision. Therein, the Agency determined that the formal complaint was comprised of the following two claims:
1. since June 7, 2011 or so, Complainant has not been able to contact the appropriate EEO source to file her claim; and
2. since June 7, 2011 or so, her dog bite claim was not fully processed.
In her formal complaint, Complainant stated that Agency officials were "unprofessional, negligent, and incompetent" in the handling of a dog bit incident, as well as in regard to the "handling & processing of my personal disability insurance claim forms. . . "
In its February 15, 2012 final decision, the Agency dismissed the instant formal complaint pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim. The Agency found that in regard to claim 1, Complainant did not show that she suffered a personal loss or harm to a term, condition or privilege of her employment. Specifically, the Agency noted that Complainant alleged that she was unable to contact the Agency's EEO office since June 7, 2011 at [provided local and main 888 contact numbers]. The Agency stated that the record reflects that during the relevant time, the main telephone number was active but the local number was not. Furthermore, the Agency determined that once the instant complaint was received, it was processed promptly according to its procedures.
Regarding claim 2, the Agency found that this matter constituted an impermissible collateral attack on the OWCP process. The Agency found that this claim was outside the Commission's jurisdiction and should have been raised with the Department of Labor.
CONTENTIONS ON APPEAL
On appeal, Complainant argues that in regard to claim 1, she informed her assigned EEO Specialist "after NOT receiving return calls from the local office, I contacted the [provided main 888 number] and finally received the EEO complaint package. The statement by [EEO Services Analyst] is either inaccurate or a typographical error, consider I NEVER said, that I was unsuccessful in contacting the [provided main 888 number] telephone number [emphasis in its original]."
With respect to claim 2, Complainant argues that her disability forms had nothing to do with a dog bite and that they were related to a "personal medical issue." Specifically, Complainant states that the disability forms "were NOT for the DOG bite and were for a personal medical issue. The unprofessional, incompetent and negligent handling of this paperwork, caused a tremendous financial hardship on me and my family while being out on FMLA sick leave for sick weeks [emphasis in its original]."
ANALYSIS AND FINDINGS
Claim 1
Claim 1 fails to state a claim under the EEOC regulations because Complainant failed to show that she suffered 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).
However, even though Complainant's concern does not rise to an actionable claim, the Agency has a duty to address this matter. EEO MD-110, Ch. 5 � IV.D provides, in pertinent part, the following: "The Agency official responsible for the quality of complaint processing must add a record of the complainant's concerns and any actions the Agency took to resolve the concerns, the compliant file maintained on the underlying complaint. If no action was taken, the file must contain an explanation of the Agency's reason(s) for not taking any action."
The record contains a copy of the Supervisor Customer Services (SCS)'s affidavit dated February 10, 2012. Therein, SCS stated that an EEO poster identified as EEO Poster 72 "dated September 2008, is displayed in conspicuous places in the building. Specifically to this request, Poster 72's are posted on the Employee Bulletin Board by the break room and the AA/EEO bulletin board near the vestibule leading to the dock area. Poster 72 has been posted since April 2009 and is currently on display. This poster advises employees of the time requirements for timely filing an EEO counseling request and the telephone number to contact to request EEO counseling. I have attached a copy of Poster 72." The record also contains a copy of EEO Poster 72 dated September 2008 listing the 888 contact number.
While the record contains the above referenced affidavit, the Commission nevertheless does not reflect what, if any, actions the Agency took to address Complainant's concerns. Consequently, in concern for the integrity of the Agency's EEO process, we order the Agency to provide Complainant with a report of any actions that it may have taken to resolve Complainant's concerns about the processing of the complaint, or an explanation of its reasons for not taking any action, in accordance with the ORDER below.
Claim 2
Complainant, on appeal, asserts that Agency management did not handle her medical forms for a personal medical issue in a professional and competent matter which caused a financial hardship on her and her family while being on FMLA sick leave for six weeks. This matter, not expressly addressed by the Agency in its final decision is not a collateral attack on the OWCP process, as it addresses the issue of whether the Agency discriminatorily failed to timely process her medical paperwork. Moreover, we discern nothing regarding the issue relating to improper processing of a dog bit claim as a collateral attack upon the OWCP process. Therefore, we find that the Agency improperly dismissed claim 2 for failure to state a claim.
Accordingly, we AFFIRM the Agency's dismissal of claim 1 for failure to state a claim. We REVERSE the Agency's dismissal of claim 2 and REMAND claim 2 (as defined herein), as well as the matter relating to improper complaint processing, to the Agency for further processing in accordance with the ORDER below.
ORDER
The Agency is ORDERED to take the following action:
1. Within thirty (30) calendar days of the date that this decision becomes final, the Agency official responsible for the quality of compliant processing must (a) add a record of Complainant's concerns, and (b) any actions the Agency took to resolve the concerns. The Agency shall also provide Complainant with a report of any actions taken by the Agency to resolve the concerns, or an explanation of its reason for not taking any action.
The Agency shall submit a copy of the report, or its explanation, to the Compliance Officer referenced below.
2. The Agency is ordered to process the remanded claims (claim 2) 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 (K0610)
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 77960, Washington, DC 20013. 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 (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 (T0610)
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 (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
October 16, 2012
__________________
Date
2
0120121878
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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