U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Mathilda S.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southwest Area), Agency. Appeal No. 0120152565 Agency No. 4G-752-0163-15 DECISION Complainant filed a timely appeal with this Commission from the Agency's decision dated June 24, 2015, dismissing her 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 Customer Service Representative at the Agency's facility in Coppell, Texas. On June 7, 2015, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of race (African-American), sex (female), and color (Black). In its final decision dated June 24, 2014, the Agency determined that Complainant's complaint was comprised of the following claim: On or around April 13, 2015, [Complainant] became aware that a co-worker at the Call Center that had been sent home under the same circumstances as [her], was about to receive compensation for his time off work, and [Complainant] wants to be compensated for [her] time off work. The Agency dismissed Complainant's complaint on the grounds that it states the same claim that is pending or has been decided by the Agency or the Commission. The Agency asserts that the instant complaint raises issues identical to those in the McConnell class complaint. Specifically, the Agency states that Complainant is alleging that she was sent home as "no work available" under the NRP process and was not provided a reasonable accommodation by being allowed to work in a limited duty status. In addition, the Agency states that an individual complaint that comes within the definition of the class claim will be subsumed within the class complaint. The Agency also dismissed Complainant's complaint on the alternate grounds of untimely EEO Counselor contact. The Agency reasoned that Complainant returned to work in July 2014, but did not initiate EEO contact until April 15, 2015, outside of the applicable time period. The instant appeal followed. On appeal, Complainant reiterates that she believes she was subjected to discrimination when she was not made whole (annual, leave, sick leave, TSP etc.) when she returned to work. She asserts that a co-worker outside of her protected classes who was out of work due to the same circumstances was made whole. In response, the Agency requests that we affirm its final decision dismissing Complainant's complaint. ANALYSIS AND FINDINGS Dismissal for Setting Forth the Same Claim Pending Before the Commission 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. To be dismissed as the same claim, the present formal complaint and prior complaints must have involved identical matters. The Commission has consistently held that in order for a formal 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. U.S. Postal Serv., EEOC Appeal No. 01955890 (April 5, 1996). The Agency improperly dismissed Complainant's complaint for setting forth the same claim that is pending before the Commission. We do not find the instant claim is identical to the matters set forth in the McConnell class action. In the instant complaint, Complainant is not alleging that she was put off work under the NRP; rather, Complainant is alleging that upon her return to work in July 2014, the Agency did not restore her benefits. We note that while there may be some overlap in the remedies of these two matters, the instant claim is not identical to the McConnell class action.2 See Complainant v. U.S. Postal Serv., EEOC 0120140958 (April 30, 2014), req. for recons. den., EEOC Request No. 0520140381 (finding that complainant's claim that she was denied compensation for lost benefits upon her return to work did not set forth the same claim as complainant's McConnell class action claim). To the extent Complainant is alleging that the Agency did not restore her benefits upon her return to work based on her protected classes, we find that Complainant has set forth an actionable claim. The only questions for an agency to consider in determining whether a complaint states a claim are: (1) whether complainant is an aggrieved employee; and (2) whether complainant raises employment discrimination on a basis covered by EEO statutes. If these questions are answered in the affirmative, an agency must accept the complaint for processing regardless of its judgment of the merits. See Odoski v. Dep't of Energy, EEOC Appeal No. 01901496 (April 16, 1990). To the extent, however, Complainant may be alleging that the union failed to restore her benefits via a union grievance/settlement, we find that this is a collateral attack on the grievance 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. Dep't of Def., EEOC Request No. 05970596 (July 30, 1998); Kleinman v. U.S. Postal Serv., EEOC Request No. 05940585 (Sept. 22, 1994); Lingad v. U.S. Postal Serv., EEOC Request No. 05930106 (June 25, 1993). The proper forum for Complainant to have raised her challenges to actions which occurred during the arbitration/grievance process is within that forum itself. It is inappropriate to now attempt to use the EEO process to collaterally attack actions which occurred during the arbitration process. Dismissal for Untimely EEO Counselor Contact 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 (Feb. 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. We find that the Agency improperly dismissed Complainant's complaint for untimely EEO Counselor contact. As set forth above, we find that Complainant is alleging that based on her protected classes Complainant's past benefits (i.e. annual leave, sick leave etc) were not restored upon her return to work. Upon review of the record, we find that Complainant did not reasonably suspect discrimination until on or around April 13, 2015, when Complainant became aware that a co-worker outside of her protected classes, who had also been off from work under the same circumstances as Complainant, had his benefits restored upon his return to work. See Complainant v. U.S. Postal Serv., EEOC 0120140958 (April 30, 2014), req. for recons. den., EEOC Request No. 0520140381 (Commission finding complainant's EEO contact to be timely reasoning that she did not reasonably suspect discrimination until she was informed by co-workers that employees outside of her protected classes were getting compensation and benefits for their time off from work). Therefore, we find Complainant's April 15, 2015 EEO contact date to be timely. Accordingly, we REVERSE the Agency's dismissal of Complainant's complaint, defined herein, as the Agency's failure to restore her past benefits upon her return to work based on her protected classes, and we REMAND this matter to the Agency for further processing in accordance with the Order below. ORDER (E0610) 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 (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 (M0815) 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 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, 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 (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 (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 December 1, 2015 __________________ 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. 2 We further note that this matter should not be subsumed within the McConnell class action because as set forth above the instant complaint does not involve the same claim as that raised in the McConnell class action. In addition, Complainant does not allege disability discrimination in the instant complaint, the McConnell class action solely involved the basis of disability discrimination. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120152565 2 0120152565