Luann L.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency.

Equal Employment Opportunity Commission

Aug 27, 2019

2019002484 (E.E.O.C. Aug. 27, 2019)

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

Luann L.,1
Complainant,

v.

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

Appeal No. 2019002484

Agency No. 4G-390-0003-19

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency's final decision dated February 21, 2019, dismissing a formal
complaint of unlawful employment discrimination in violation of Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 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 Sales, Service Distribution Associate at the
Agency’s Shuqualak, Mississippi Post Office.

On February 4, 2019, Complainant filed the instant formal complaint. Complainant claimed that
the Agency subjected her to discrimination on the bases of disability and genetic information
when:

1. on July 27, 2017, she was issued a Notice of Indefinite Suspension-crime situation; 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.
2019002484

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2. on or about September 29, 2018, she became aware that management failed to comply
with a February 13, 2018 and July 12, 2018 grievance settlement, which was ultimately
resolved with a November 5, 2018 grievance settlement in Case Number G15C-4G-
C19011409.

In its February 21, 2019 final decision, the Agency dismissed claim 1 for stating the same claim
that was raised in her prior formal EEO complaint. The Agency found that Complainant raised
the same issue previously in a prior formal complaint identified as Agency Case No. 4G-390-
0098-17.
.
The Agency further 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
arbitration process. The Agency stated that Complainant should have raised her claim through
the arbitration process, and not through the EEO complaint process.

The instant appeal followed.

ANALYSIS AND FINDINGS

Claim 1

EEOC Regulation 29 C.F.R. § 1614.107(a)(1) provides that the Agency shall dismiss an entire
complaint that states the same claim that is pending before or has been decided by the agency or
the Commission.

The Agency properly dismissed claim 1 on the grounds that the matter raised therein is the same
matter that was raised in a prior formal complaint (Agency Case No. 4G-390-0098-17) alleging
the same claim.2 Specifically, the Agency stated that on October 19, 2017, Complainant filed a
complaint alleging that on July 27, 2017, she was issued a Notice of Indefinite Suspension-Crime
situation.

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).

2 The Agency issued a final decision dismissing Complainant’s prior formal complaint pursuant
to 29 C.F.R. § 1614.107(a)(4). On appeal, the Commission affirmed the Agency’s dismissal of
the formal complaint. Complainant v. U.S. Postal Service, EEOC Appeal No. 0120180664
(February 28, 2018).
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The proper forum for Complainant to have raised her challenges to actions which occurred
during the arbitration 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 arbitration 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).
2019002484

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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

August 27, 2019
Date