0120180414
01-24-2018
Joy J.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Headquarters), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Joy J.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Headquarters),
Agency.
Appeal No. 0120180414
Hearing No. 440-2016-00028X
Agency No. 6U-000-0020-15
DECISION
Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated April 27, 2017, dismissing her 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 worked as a Field Account Representative at the Agency's Gateway District facility in Hazelwood, Missouri.
Complainant, a former EAS-25 Manager of Sales, had been involuntarily demoted to the Field Account Representative position, effective April 30, 2015. Complainant appealed the Agency's action to the Merit Systems Protection Board (MSPB), which issued a decision upholding the demotion. In June 2015, when her former position was posted as a vacancy, Complainant applied for the position. She was denied an interview for the position and was not considered further.
On August 19, 2015, Complainant filed a formal EEO complaint alleging that the Agency subjected her to discrimination on the basis of reprisal for engaging in protected activity when, on June 25, 2015, she was notified that she would not be interviewed for the EAS-25 Manager of Sales position.
The Agency investigated the complaint. Following the investigation, Complainant requested a hearing before an EEOC Administrative Judge (AJ). The AJ issued a decision dismissing the complaint, pursuant to 29 C.F.R. � 1614.107(a)(1), for failure to state a claim. The AJ determined that it was undisputed that the reason Complainant was denied the interview was her recent demotion from the same position, a decision that had been challenged and upheld by the MSPB. The AJ concluded that Complainant's formal complaint constituted an improper collateral attack on the MSPB appeal process, and dismissed the complaint.
The Agency's final action adopted the AJ's decision. The instant appeal followed.
ANALYSIS AND FINDINGS
Timeliness of Appeal
As an initial matter, we reject the Agency's claim that Complainant's appeal should be dismissed because it was filed in an untimely manner. EEOC Regulation 29 C.F.R. �1614.402 provides that appeals to the Commission must be filed within 30 calendar days after a complainant received notice of the Agency's decision. The Agency asserted that it mailed its final decision to Complainant's former address in April 2017, as it was not informed that Complainant had moved. Complainant did not file her appeal until November 2017, well beyond the 30-day deadline.
However, we find that Complainant sufficiently established the she had provided the AJ with her correct mailing address. Inexplicably, the AJ sent the dismissal decision to Complainant's old address. The record indicates Complainant never received this decision until she called the EEOC hearings unit concerning the status of her case, and learned of the dismissal decision. As a result, the decision was resent to her on October 18, 2017. We also note that the Agency did not indicate when Complainant received its final order adopting the AJ's decision. Based on these circumstances, we find adequate justification to excuse any delay on Complainant's part in filing her appeal.
AJ's Dismissal Decision
The AJ dismissed the complaint as a collateral attack on the decision of the MSPB upholding Complainant's demotion. The AJ reasoned that "Complainant alleges [in her EEO complaint] and it is undisputed that her denial of the interview was based on her unlawful demotion." By raising this claim, the AJ found that Complainant was directly challenging the basis for her demotion, which was being adjudicated by the MSPB.
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. Dep't of Defense , EEOC Request No. 05970596 (July 30, 1998); Kleinman v. U.S. Postal Serv., EEOC Request No. 05940585 (Sept. 22, 1994); Lingad v. U.S. Postal Serv., EEOC Request No. 05930106 (June 25, 1993).
Here, Complainant has argued in her statement on appeal that she was the best qualified candidate because she had previously held the position and "it's obvious I was discriminated against because of my unlawful demotion," asserting she was retaliated against for her legal challenges to that demotion. Under the unique facts of this case, we conclude that the instant EEO claim is so inextricably intertwined with Complainant's challenge to the demotion, that the AJ was correct in dismissing the complaint. While Complainant argues otherwise, a fair reading of her EEO complaint shows that it is grounded in a claim that her removal from her managerial position through the demotion was unlawful and she should have been selected back into the position. This claim, however, was adjudicated by the MSPB, which upheld the demotion. We find particularly relevant to this determination that the denial of the interview here occurred on the heels of Complainant's demotion and was to replace her, rather than a selection decision made at some distance from the demotion. Accordingly, we find the AJ did not err in dismissing the complaint as a collateral attack of the adjudication by the MSPB.
CONCLUSION
After a careful review of the record, including Complainant's arguments on appeal and arguments and evidence not specifically discussed in this decision, the Agency's adoption of the AJ's dismissal of the instant 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).
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
January 24, 2018
__________________
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.
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