0120170082
02-17-2017
Jermaine I.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Jermaine I.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Southern Area),
Agency.
Appeal No. 0120170082
Agency No. 4G720004416
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated September 12, 2016, dismissing his complaint alleging 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was a former employee of the Agency's facility in West Memphis, Arkansas.
On August 14, 2016, Complainant filed a formal complaint alleging that the Agency subjected him to unlawful retaliation when: (1) in 2007, he was not given his 25-year service award; (2) on dates not specified, management has not issued a new PS form 50 to show he was retired; (3) on a date not specified, he was terminated; (4) on a date not specified, management refused to reassign him to duty; (5) on dates not specified, management failed to accommodate him; and (6) on a date not specified, he was charged with a debt by the Arkansas Department of Workforce Services.
The Agency dismissed claims 1-5 pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely EEO Counselor contact, claims 2-5 for raising the same matters in earlier complaints, and claim 6 as a collateral attack on another proceeding.
The instant appeal followed. In his appeal, Complainant notes that the Office of Personnel Management granted him disability retirement and he wants his records to reflect that he retired and was not terminated.
ANALYSIS AND FINDINGS
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 a personnel action, within forty-five (45) days of the effective date of the action.
The record shows that Complainant was terminated from the Agency on January 29, 2011, but Complainant did not initiate contact with an EEO Counselor until April 19, 2016, which is well beyond the forty-five (45) day limitation period. Claims 1, 3, 4 and 5, involve Complainant's termination or events which occurred before and, therefore, untimely raised. We note that Complainant raised his termination, and retirement issues in earlier EEO complaints, docketed as Agency Case Nos. 4G-720-0017-11 and 4G-720-0105-11. Thus, we find that the Agency properly dismissed claims 1-5 as untimely raised and/or for having raised the same claims in his earlier complaints.
As to claim 6, the Commission has held that an employee cannot use the EEO complaint process to lodge a collateral attack on another adjudicatory proceeding. See Wills v. Department of Defense, EEOC Request No. 05970596 (July 30, 1998); Kleinman v. United States Postal Service, EEOC Request No. 05940585 (September 22, 1994); Lingad v. United States Postal Service, EEOC Request No. 05930106 (June 25, 1993). In his complaint, Complainant alleged reprisal when he was charged a debt by the Arkansas Department of Workforce Services. The Commission's regulations do not provide it with jurisdiction over such matters, and he should raise his concerns within that process.2
Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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 or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. 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. The requests 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 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. 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
February 17, 2017
__________________
Date
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.
2 We note that, for the first time on appeal, Complainant has raised a claim that on September 19, 2016, he received a notice from the Agency regarding a debt it was seeking to collect. This claim is not part of the complaint at issue and we decline to address it. Moreover, Commission precedent has long held that challenges to an agency's actions under the Debt Collection Act are not within the scope of the EEO complaint process. Baughman vs. Department of Army, EEOC Appeal No. 01900865 (February 26, 1990); Amato v. Department of the Army, EEOC Request No. 0520070240 (July 18, 2007).
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