U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Greta F.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southwest Area), Agency. Appeal No. 0120160387 Agency No. 4G-770-0246-15 DECISION Complainant filed a timely appeal with this Commission from the Agency's final decision dated October 9, 2015, 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 Manager, Customer Service, at the Agency's Copperfield Station in Houston, Texas. On September 22, 2015, Complainant filed a formal complaint alleging that the Agency subjected her to ongoing discriminatory harassment on the bases of race/color (African American) and in reprisal for prior protected EEO activity (serving as representative to other employees in EEO cases). Complainant alleged that a named Manager particularly demonstrated retaliatory animus towards her due to her involvement in other employees' EEO complaints against him. She alleges that she has been subjected to verbal abuse from him and his employees told her that the Manager warned his staff against speaking to Complainant. On October 9, 2015, the Agency dismissed the formal complaint, pursuant to 29 C.F.R. § 1614.107(a)(1) for failure to state a claim, finding that Complainant was not aggrieved. The Agency determined that Complainant was improperly lodging a collateral attack on the proceedings of another forum. The Agency determined that Complainant was contesting the Manager's interference in Complainant's role as a National Association of Postal Supervisors (NAPS) representative. The Agency stated that Complainant's overall claim of harassment was regarding the Manager's attempt to restrict her effectiveness as a NAPS representative. The Agency determined that the proper forum for Complainant to have raised any challenges to or actions as a result of the alleged harassment she faced, as a NAPS representative, would have been through the NAPS process, or before the National Labor Relations Board (NLRB). On appeal, Complainant, through her representative, contends that as a manager she is not eligible to seek recourse through the negotiated grievance procedure. Complainant contends that she is not aware of any NAPS process which would have allowed a complaint of discrimination. Complainant also contends that managerial employees, such as herself, are not allowed to bring complaints before the NLRB. Complainant also disputes the Agency's determination that she did not suffer from retaliation. Complainant contends that by prohibiting her from speaking with employees, whom she might represent in complaints of discrimination, the Agency has effectively cast a chilling effect on the EEO process, and that it could be construed as an effort by management to discourage EEO activity. In response, the Agency contends that the formal complaint was properly dismissed for the reasons provided in the final decision. The Agency contends that Complainant's role as a NAPS representative is analogous to someone else performing duties as a union representative, in that management's recognition of her status is governed by Agency statutes and regulations and has nothing to do with EEO complaints. ANALYSIS AND FINDINGS The Agency improperly dismissed the complaint in the instant matter for failure to state a claim when finding that it constitutes a collateral attack on the NAPS grievance process. A claim that can be characterized as a collateral attack, by definition, involves a challenge to another forum's proceeding, such as the grievance process, the unemployment compensation process, or the workers' compensation process. See, e.g., Fisher v. Dep't of Defense, EEOC Request No. 05931059 (July 15, 1994) (challenge to agency's appeal within the workers' compensation process fails to state a claim as an EEO complaint); Lingad v. United States Postal Service, EEOC Request No. 05930106 (June 23, 1994) (challenge to evidentiary ruling in grievance process fails to state a claim as an EEO complaint). A fair reading of the formal complaint and related materials in this case reveals that Complainant is not challenging the Agency's actions within an adjudicatory process. She is also not asserting, as the Agency claims, that it is violating some sort of collective bargaining agreement concerning her right to represent other employees as a NAPS representative. Instead, a fair reading of the complaint show that Complainant is alleging that she is personally being subjected to ongoing harassment from a named manager in unlawful retaliation for her involvement in EEO complaints against him. This states a viable retaliation claim asserting a violation of Title VII. As such, the Agency erred in dismissing the complaint. Accordingly, the Agency's dismissal decision is REVERSED and the complaint is REMANDED to the Agency for further processing pursuant to the following Order. ORDER (E0610) The Agency is ordered to process the remanded claims 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 (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. Carlton M. Hadden, Director Office of Federal Operations February 19, 2016 __________________ 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 0120160387 4 0120160387