[Redacted], Donny F., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency.

Equal Employment Opportunity Commission

Feb 8, 2023

Appeal No. 2023000385 (E.E.O.C. Feb. 8, 2023)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Donny F.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. Appeal No. 2023000385 Agency No. 4E-920-0122-22 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated October 4, 2022, dismissing a formal 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., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND During the relevant period, Complainant worked for the Agency as a City Carrier Assistant at the Hesperia Post Office in Hesperia, California. On September 14, 2022, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination based on race, sex, color, and disability when, on or about June 27, 2022, he was injured on the job and management required him to demonstrate the accident, and this demonstration purportedly resulted in further injury. Complainant stated management delayed his CA-16 paperwork and he was not compensated with Continuation of Pay (COP) from the Department of Labor’s Office of Workers’ Compensation Programs (OWCP). 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. 2023000385 2 In its October 4, 2022 decision, pursuant to 29 C.F.R. 1614.107(a)(2), the Agency dismissed for failure to state a claim. The Agency determined that COP is a determination made by the OWCP and Complainant was lodging an improper collateral attack on an OWCP decision. The instant appeal followed. ANALYSIS AND FINDINGS An employee cannot use the EEO complaint process to lodge a collateral attack on another adjudicatory proceeding. See Wills v. Dep’t of Def., 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). A claim that can be characterized as a collateral attack, by definition, involves a challenge to another forum’s adjudicatory proceeding, such as the grievance process, the worker’s compensation process, or state or federal litigation. See Fisher v. Dep’t of Def., EEOC Request No. 05931059 (July 15, 1994). Complainant stated that management delayed his CA-16 paperwork and he was not compensated with COP from the Department of Labor’s Office of Workers’ Compensation Programs (OWCP). Agency management action is governed by duties under the OWCP regulations. The EEO complaint process cannot remedy alleged violations of the OWCP process. See Smart v. U.S. Postal Service, EEOC Appeal No. 0120054627 (Nov. 19, 2007) (the Commission found that complainant’s claim that she was not being paid properly for continuation of pay was an impermissible collateral attack on the Department of Labor); Smith v. U.S. Postal Service, EEOC Appeal No. 0120080070 (March 20, 2009) (the Commission affirmed the agency’s dismissal of Complainant’s claim that the agency refused to process his leave buy back as a collateral attack on the OWCP process); Nobis v. U.S. Postal Serv., EEOC Appeal No. 0120081269 (March 20, 2008) (dismissing a denial of continuation pay claim as a collateral attack and therefore failing to state an actionable claim). The award of COP and review of COP violations are determinations that must be made within the OWCP adjudicatory process. The proper forum for Complainant to raise his concerns with OWCP. CONCLUSION We AFFIRM the Agency’s final decision dismissing the formal complaint for the reasons discussed above. 2023000385 3 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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). 2023000385 4 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 8, 2023 Date