Freddy K.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Great Lakes Area), Agency.

Equal Employment Opportunity Commission

Nov 13, 2019

2019005751 (E.E.O.C. Nov. 13, 2019)

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

Freddy K.,1
Complainant,

v.

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

Appeal No. 2019005751

Agency No. 4J-481-0107-19

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency's final decision dated July 1, 2019, 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., and Section 501 of the Rehabilitation Act of
1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq.

BACKGROUND

During the period at issue, Complainant worked as a Supervisor Customer Service at the
Agency’s Dearborn Carrier Annex in Taylor, Michigan.

On June 8, 2019, Complainant filed the instant formal complaint. Complainant claimed that the
Agency subjected him to discrimination on the bases of race and disability when:

1. on June 16, 2017, after a meeting with the District Reasonable Accommodation
Committee (“DRAC”), he was instructed by management to provide a request for Light
Duty and medical documentation, and told not to return to work until he had the
documentation; and

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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2. on an unspecified date, management did not process his Office of Workers’
Compensation Programs (“OWCP”) form.

In its July 1, 2019 final decision, the Agency dismissed claim 1 pursuant to 29 C.F.R. §
1614.107(a)(1) for stating the same claim in a prior complaint, identified as Agency Case No. 4J-
481-0159-17. Complainant was issued a Notice of Right to File a Formal Complaint on October
5, 2017, regarding claim 1. However, Complainant did not file a formal complaint in this matter
and the Agency administratively closed it. Based on its conclusion that claim 1 raised in the
instant complaint was the same as the claim raised in Complainant’s prior EEO contact, the
Agency dismissed claim 1 pursuant to 29 C.F.R. § 1614.107(a)(1).

The Agency dismissed claim 2 for failure to state a claim, pursuant to 29 C.F.R. §
1614.107(a)(1). Specifically, the Agency found that the subject claim is a collateral attack on the
OWCP process. The Agency stated that Complainant should have raised his claim through the
OWCP process, and not through the EEO complaint process.

The instant appeal followed.

ANALYSIS AND FINDINGS

Claim 1

The Agency dismissed claim 1 for stating the same claim which was raised in a previously filed
complaint. We find, however, that the claim is more properly analyzed in terms of whether the
claim has been abandoned. The Commission has held that “a complainant who receives
counseling on an allegation, but does not go forward with a formal complaint on that allegation
is deemed to have abandoned it and consequently, cannot raise it in another complaint.” Small v.
U.S. Postal Service, EEOC Request No. 05980289 (July 16, 1999). Here, the report of the EEO
Counselor indicates that Complainant first sought EEO counseling regarding the matter raised in
claim 1 on July 11, 2017. The record further indicates, however, that Complainant did not
continue to pursue the claim, until June 8, 2019, when he filed the instant formal complaint. We
therefore find that Complainant abandoned the matter raised in claim 1. Tate v. U.S. Postal
Service, EEOC Request No. 0520060584 (Dec. 15, 2006) (claim abandonment when no
complaint filed). Accordingly, where, as here, Complainant has abandoned his claim, dismissal
is appropriate.

Claim 2

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. U.S. Postal Service, EEOC Request No. 05940585 (September 22, 1994); Lingad v.
U.S. Postal Service, EEOC Request No. 05930106 (June 24, 1993).
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The proper forum for Complainant to have raised his challenges to actions which occurred
during the OWCP process is within that process itself. It is inappropriate to now attempt to use
the EEO process to collaterally attack actions which occurred through the OWCP process. The
Agency properly dismissed claim 2 for failure to state a claim.

The Agency’s final decision dismissing Complainant’s formal complaint for the reasons stated
herein is AFFIRMED.

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).

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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.
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

November 13, 2019
Date