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

Equal Employment Opportunity Commission

Sep 25, 2019

2019003652 (E.E.O.C. Sep. 25, 2019)

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

Horacio A,1
Complainant,

v.

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

Appeal No. 2019003652

Agency No. 4F-920-0069-19

DECISION

Complainant filed this appeal with the Equal Employment Opportunity Commission (EEOC or
Commission) from the Agency's decision dated April 12, 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. 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 City Letter Carrier at the Agency’s Post
Office in Indio, California.

On March 11, 2019, Complainant filed a formal complaint alleging that the Agency subjected him
to discrimination based on disability and in reprisal for prior EEO activity when:

1. on December 11, 2018, Complainant received a letter from the Office
of Workers’ Compensation Programs (OWCP) stating that the
Agency informed OWCP that Complainant had not provided his
work-restriction forms; 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 December 21, 2018, Complainant received a letter from the Office
of Personnel Management (OPM) stating that OPM could not take
any action on Complainant’s disability retirement application
because the Agency did not turn-in the required OPM forms.

The Agency dismissed the formal complaint for failing to state a claim, under 29 C.F.R. §
1614.107(a)(1). Specifically, the Agency determined his claims constituted collateral attacks on
OWCP’s compensation process and on OPM’s disability retirement process.

On appeal, Complainant contended the Agency engaged in ongoing retaliation campaign against
him. Basically, Complainant accused the Agency of deliberately delaying sending documents that
were required by OPM and OWCP to complete his claims for disability compensation and
retirement. Complainant requested his complaint amended to include the Agency’s failure, on
May 14, 2019, to provide OPM an SF-3100 that was necessary for adjudication of his claim for
disability retirement.

ANALYSIS AND FINDINGS

The Agency properly dismissed the instant complaint for failure to state a claim in accordance
with 29 C.F.R. § 1614.107(a)(1). EEOC views reprisal claims broadly. Carroll v. Dep’t of the
Army, EEOC Request No. 05970939 (Apr. 4, 2000). However, the proper forums for Complainant
to challenge processing delays by OPM and by OWCP was before OPM and OWCP, rather than
before the Agency through the EEO discrimination complaint process. We have long held raising
collateral attacks on non-EEO administrative proceedings using the EEO process fails to state a
claim. Estrada v. Dep’t of Agric., EEOC Appeal No. 0120071677 (May 17, 2007), req. for recons.
den., EEOC Request No. 0520070724 (Nov. 5, 2007) citing Wills v. Dep’t of Def., EEOC Request
No. 05970596 (July 30, 1998). Here, we find Complainant’s claims constituted improper collateral
attacks on OPM and OWCP for demanding further evidence and declining to make decisions on
his benefits applications.

CONCLUSION

We AFFIRM the Agency’s final decision dismissing the formal complaint for failure to state a
claim under 29 C.F.R. § 1614.107(a)(1).

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0617)

The Commission may, in its discretion, reconsider the decision in this case if Complainant or the
Agency submits a written request containing arguments or evidence which tend to establish that:
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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 Ch. 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.

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.
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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 25, 2019
Date