COMPLAINANT, v. PATRICK R. DONAHOE, POSTMASTER GENERAL, UNITED STATES POSTAL SERVICE (SOUTHWEST AREA), AGENCY. Appeal No. 0120120554 Agency No. 4G-780-0157-11 April 18, 2012 DECISION Complainant filed a timely appeal with this Commission from the Agency's September 30, 2011 decision, 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. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Full Time Labor Custodian, Level 4, at the Agency's Del Mar Station facility in Laredo, Texas. Complainant was a union steward. On May 27, 2011, Complainant sought EEO counseling and later, on September 8, 2011, filed a formal complaint alleging that the Agency discriminated against him on the basis of his sex (male) when he reported to the Postmaster that he was being subjected to ongoing harassment by local supervisors and no investigation (Initial Management Inquiry Process) was conducted or effective preventative and corrective action taken. Complainant alleges that, by contrast, when two similarly situated female employees raised allegations of harassment, management conducted an immediate inquiry and took prompt steps to correct the situation and prevent further occurrences of the harassment. [FN1] The Agency dismissed the complaint on two grounds. First, pursuant to 29 C.F.R. § 1614.107(a)(1), the Agency dismissed the complaint for failure to state a claim, reasoning that it was a collateral attack on the negotiated grievance process as Complainant had filed a grievance on the same matter in May 2011. The Agency asserted that the proper forum to raise a challenge to his contract rights was through the grievance forum. In the alternative, the Agency dismissed the complaint for untimely EEO counselor contact, arguing that Complainant's initial contact on May 27, 2011, was more than 45 days after the last incident of alleged harassment (January 2011) raised in his grievance. The instant appeal followed. On appeal, Complainant clarified that he was not challenging the grievance decision in his EEO complaint, but the Agency's failure to respond appropriately to his allegations of harassment. He states that the last time that he notified management of the alleged harassment was on May 23, 2011, when he and his representative met with the Postmaster, and he initiated EEO counseling four days later on May 27, 2011, well within the 45-day limitation period. ANALYSIS AND FINDINGS 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). However, while the Agency has characterized the complaint as challenging a decision by management to not settle his related grievance, as we have already noted, a more correct characterization of the complaint is that management did not take his allegations of harassment seriously by directing an investigation and taking prompt and effective corrective and preventative action. By contrast, he cites to an allegedly very different reaction from management to the harassment complaints of several female employees. Therefore, we do not find that the instant complaint lodges a collateral attack on a grievance decision and the Agency erred in dismissing the complaint on this basis. We also note, for the record, that postal employees are not subject to the election provisions of 29 C.F.R. 1614.301 because they are not employees in an agency subject to the provisions of 5 U.S.C. 7121(d). See 5 U.S.C. 2105(e). Therefore, Complainant was entitled to raise his allegations of ongoing harassment in both the negotiated grievance process and the EEO complaint process without having to make an election between the two processes. With regard to the Agency's alternative ground for dismissal, 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. In this case, the record shows that Complainant and his representative met with the Postmaster on May 23, 2011, to complain of the ongoing harassment, but that unlike female employees who have their allegations of harassment promptly investigated, the Postmaster did nothing to correct the situation for him or prevent it from happening in the future. Instead, Complainant asserts that Postmaster blamed him for the problem. As Complainant sought EEO counseling within four days of the meeting with the Postmaster, we find Complainant's counselor contact was timely made and his complaint should not be dismissed on this ground. Accordingly, we REVERSE the Agency's final decision dismissing Complainant's complaint and REMAND the complaint to the Agency for further processing. ORDER (E0610) The Agency is ordered to process the remanded claim (ongoing harassment based on sex and retaliation for prior EEO activity [FN2]) in accordance with 29 C.F.R. § 1614.108 et seq. 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 tends 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. *4 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 sub-mitted 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 (R0610) This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. 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 filed your appeal with the Commission. 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. 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 slated in the paragraph above ("Right to File a Civil Action"). FOR THE COMMISSION: Carlton M. Hadden Director Office of Federal Operations [FN1]. The Agency characterized the complaint differently, indicating that Complainant was alleging that "on May 23, 2011, management denied a grievance settlement regarding harassment allegations."However, a fair reading of the record indicates that our characterization of the complaint is more correct. [FN2]. While Complainant did not check the box for retaliation on his complaint form, it is clear throughout the record that he was alleging retaliation in addition to sex discrimination.