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

Equal Employment Opportunity Commission

Sep 17, 2019

2019001775 (E.E.O.C. Sep. 17, 2019)

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

Gaylord I,1
Complainant,

v.

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

Appeal No. 2019001775

Agency No. 4F940006518

DECISION

Complainant appealed with the Equal Employment Opportunity Commission (“EEOC” or
“Commission”) from the Agency's November 8, 2018 dismissal of 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

At the time of events giving rise to this complaint, Complainant worked as a Lead Sales Service
Associate ("SSA") Clerk, PS-07, at the Millbrae Post Office in Millbrae, California.

On October 16, 2018, Complainant filed a formal complaint alleging that the Agency subjected
him to discrimination on the bases of race (Hispanic), national origin (Columbia), religion
(Jehovah's Witness), disability (neck and arm), and reprisal (prior protected activity) when: on
June 27, 2018 the Postmaster (“PM”) informed the United States Department of Labor (“DOL”)
Office of Workers Compensation Programs (“OWCP”) that Complainant filed another EEO
complaint and subsequently the Agency’s Office of Inspector General (“OIG”) began a
surveillance of him.

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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According to Complainant’s Formal EEO Complaint, as a result of PM notifying the DOL
OWCP of his EEO complaint, OIG agents, who he describes as “an extension of the Agency and
are considered to be the Agency” followed and filmed him “everywhere.” OIG agents also
questioned Complainant about his medical condition, and spoke to his physician without his
permission, resulting in his physician revising Complainant’s work restrictions. The record
reflects that as a result of the investigation, OWCP terminated Complainant’s workers
compensation benefits on June 27, 2018.

Complainant offers documentation establishing that OWCP was aware that he filed an EEO
complaint. However, PM denies that she was the one who disclosed his EEO status to OWCP.
She also denies informing OIG about Complainant’s EEO complaint. According to the EEO
Counselor’s Report, PM “gave the OIG names of employees that she was concerned about and
the OIG made the decision who to conduct or not conduct surveillance on.”

The Agency dismissed the matter pursuant to 29 C.F.R. § 1614.107(a)(1) for failure to state a
claim, citing improper venue and collateral attack on another administrative processes, namely
the OIG investigation and OWCP benefits. The instant appeal followed.

ANALYSIS AND FINDINGS

Under the regulations set forth at 29 C.F.R. Part 1614, an agency shall accept a complaint from
an 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). If complainant cannot establish that he or
she is aggrieved, the agency shall dismiss a complaint for failure to state a claim. 29 C.F.R. §
1614.107(a)(1).

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). However, for claims of reprisal, the complainant need only establish
that the alleged discriminatory action “is reasonably likely to deter… complainant or others from
engaging in protected activity.” Maclin v. United States Postal Serv., EEOC Appeal No.
0120070788 (Mar. 29, 2007).

The Commission has held that where, as here, a complaint does not challenge an agency action
or inaction regarding a specific term, condition, or privilege of employment, the claim of
harassment may survive if it alleges conduct that is sufficiently severe or pervasive to alter the
conditions of the complainant’s employment. See Harris v. Forklift Systems, Inc., 510 U.S. 17,
23 (1993).

Even assuming that PM disclosed Complainant’s EEO complaint, as alleged, and taking into
consideration the broad view of coverage afforded reprisal claims, we find the matter was
properly dismissed as a collateral attack.
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Collateral Attack

Generally, complaints involving another administrative proceeding fail to state a claim within the
meaning of EEOC regulations, as they constitute impermissible attempts to lodge a collateral
attack. See Wills v. Dep’t of Defense. EEOC Request No. 05970596 (July 30, 1998) other
citations omitted. A claim that can be characterized as a collateral attack, by definition, involves
a challenge to another forum’s proceeding, such as workers’ compensation and related OWCP
processes. See Fisher v. Dep't of Defense, EEOC Request No. 05931059 (July 15, 1994). For
instance, in Hogan v. Department of the Army, we reasoned that an allegation that agency
officials provided misleading statements to OWCP was an attempt to lodge a collateral attack
because reviewing such a claim would require the Commission to determine what workers'
compensation benefits the complainant would likely have received, which is outside EEOC
authority. EEOC Request No. 05940407 (Sept. 29, 1994).

The Commission has also applied this rule to internal affairs investigations conducted within the
agency, by agency employees, finding that “merely conducting an investigation into purported
improper or illegal conduct does not cause any injury without more, for example, resulting
disciplinary action.” Shelly v. Dep’t of the Treas., EEOC Appeal No. 01996655 (Oct. 27, 2000);
see also Heard v. Dep’t of Justice, EEOC Appeal No. 0120092680 (Aug. 27, 2009). As with the
instant complaint, we have found that the alleged act of initiating an investigation cannot state a
claim, as it would constitute a collateral attack on an administrative process. Martin v. Dep’t of
Justice, EEOC Appeal No. 01A32934 (Sept. 17, 2003).

On appeal, Complainant argues that the issue before us is not with the DOL OWCCP or its
actions, but the fact that PM disclosed his EEO activity at all. This new framing contradicts
Complainant’s Formal EEO complaint, and fails to state a viable claim. Even if the PM told
OWCCP of his EEO complaint, Complainant is not alleging that OWCCP reprised against him
because of this information. Therefore, we find the Agency properly determined that
Complainant’s allegation constituted an attempt to lodge an impermissible collateral attack and
failed to state a claim.

New Claims of Reprisal

On appeal, Complainant also alludes to ongoing reprisal and discriminatory harassment by PM
including with respect to his work schedule. Complainant did not include these claims in his
Formal EEO Complaint, so they will not be adjudicated in this decision. If Complainant wishes
to pursue these new harassment and retaliation claims in an EEO complaint, then he must contact
an EEO Counselor pursuant to 29 C.F.R. § 1614.105. See Hall v. United States Postal Serv.,
EEOC Appeal No. 0120031342 (Apr. 24, 2003).

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Request for Damages

Although Complainant claims to have suffered damages as a result of the incident at issue, the
Commission has held that allegations that fail to state a claim cannot be converted into a viable
claim merely because the complainant requests compensatory damages as a remedy. Ulanoff v.
United States Postal Serv., EEOC Request No. 05950396 (Jan. 26, 1996); Shrader v. Dep’t of
Agriculture, EEOC Appeal No. 01961499 (Nov. 3, 1997).

CONCLUSION

Accordingly, the Agency's final decision dismissing Complainant's complaint 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

September 17, 2019
Date