Felton Z,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Pacific Area), Agency.

Equal Employment Opportunity Commission

Sep 30, 2019

2019003595 (E.E.O.C. Sep. 30, 2019)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Felton Z,1
Complainant,

v.

Megan J. Brennan,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.

Appeal No. 2019003595

Agency No. 4F-900-0083-19

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency's final decision dated April 15, 2019, 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., Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq., and Title II of the
Genetic Information Nondiscrimination Act of 2008, 42 U.S.C. § 2000ff et seq.

BACKGROUND

During the period at issue, Complainant worked as a Customer Service Supervisor, EAS-17, at
the Agency’s Long Beach GMF Station Post Office in Long Beach, California.

On December 13, 2018, Complainant initiated EEO Counselor contact. Informal efforts to
resolve his concerns were unsuccessful.

On March 15, 2019, Complainant filed a formal EEO complaint. Complainant claimed that the
Agency discriminated against him based on race, national origin, disability, genetic information,
and age when:

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.
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1. between 2015 and 2017, Complainant was not accommodated when his medical
restrictions were violated;

2. on November 8 and 25, 2016, Complainant was issued a 7-day suspension;

3. on April 10, 2017, Complainant was issued a 14-day suspension;

4. on a date not specified in March 2018, management did not correctly handle
Complainant’s Office of Workers’ Compensation (“OWCP”) claim, and
controverted his claim; and

5. on or around December 11, 2018, Complainant received a letter instructing him to
return to work.

In its final decision, dated April 15, 2019, the Agency dismissed Complainant’s complaint on
several procedural grounds. The Agency dismissed claims 1 through 4 for untimely EEO
Counselor contact, pursuant to 29 C.F.R. § 1614.107(a)(2). The Agency found that
Complainant’s initial EEO Counselor contact was on December 13, 2018, which it found beyond
the 45-day limitation period.

The Agency also dismissed claim 4 for failure to state a claim, pursuant to 29 C.F.R.
§ 1614.107(a)(1), finding that Complainant was lodging a collateral attack on the proceedings of
another forum. The Agency dismissed claim 5 for failure to state a claim, finding the
Complainant was not an aggrieved individual.

The instant appeal followed.

ANALYSIS AND FINDINGS

Dismissal of Claims 1 through 3 (Untimely EEO Counselor Contact)

The Agency properly dismissed Complainant’s claims (1), (2) and (3) 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 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.

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Here, the latest alleged discriminatory act for the claims at issue occurred on April 10, 2017.
However, Complainant did not initiate EEO Counselor contact until December 13, 2018, well
beyond the 45-day limitation period. Complainant has not presented any persuasive arguments
or evidence warranting an extension of the time limit for initiating EEO Counselor contact. 29
C.F.R. § 1614.105(a)(2).

Dismissal of Claim 4 (Collateral Attack)

The Agency properly dismissed Complainant’s claim (4) for failure to state a claim. A
complaint shall be dismissed for failure to state a claim where the complainant impermissibly
uses the EEO complaint process to lodge a collateral attack on another forum's proceeding. 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 workers' compensation process,
an internal agency investigation, or state or federal litigation. See Fisher v. Dep't of Defense,
EEOC Request No. 05931059 (July 15, 1994). Accordingly, the proper forum for a complainant
to raise challenges to his OWCP claim, as set forth in claim (4), is within that process itself
because any remedial relief available to Complainant would be through the OWCP. There is no
remedial relief available to Complainant on this matter through the EEO complaint process.

Because we determine that claim 4 was properly dismissed for failure to state a claim, we need
not address the Agency’s determination that this claim was dismissed on alternative procedural
grounds (untimely raised).

Dismissal of Claim 5 (Failure to State a Claim)

The regulation set forth at 29 C.F.R. § 1614.107(a)(1) provides, in relevant part, that an Agency
shall dismiss a complaint that fails to state a claim. Here, the Agency dismissed Complainant’s
claim finding that Complainant had not shown that he was aggrieved. An Agency shall accept a
complaint from any aggrieved employee or applicant for employment who believes that he or she
has been discriminated against by that agency because of race, color, religion, sex, national
origin, age or disabling condition. 29 C.F.R. §§ 1614.103, .106(a). The Commission's federal
sector case precedent has long defined an "aggrieved employee" as one who suffers a present
harm or loss with respect to a term, condition, or privilege of employment for which there is a
remedy. Diaz v. Dep’t of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994).

Complainant has not alleged a personal loss or harm regarding a term, condition or privilege of
his employment when he received the letter from the Agency instructing him to return to work.
The EEO Counselor’s report indicates that Complainant returned to work for one day, after
having been absent for a whole year, and subsequently submitted his disability retirement two
weeks later. Therefore, the Commission finds that claim 5 was properly dismissed pursuant to
29 C.F.R. § 1614.107(a)(1) for failure to state a claim.

Accordingly, we AFFIRM the Agency's final decision dismissing all claims in the instant matter.

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STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party
shall have twenty (20) calendar days of receipt of another party’s timely request for
reconsideration in which to submit a brief or statement in opposition. 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.
Complainant’s request may be submitted via regular mail to P.O. Box 77960, Washington, DC
20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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
agency’s request must be submitted in digital format via the EEOC’s Federal Sector EEO Portal
(FedSEP). See 29 C.F.R. § 1614.403(g). 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.

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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

September 30, 2019
Date