Buster D.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Western Area), Agency.

Equal Employment Opportunity Commission

Aug 27, 2019

2019002598 (E.E.O.C. Aug. 27, 2019)

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

Buster D.,1
Complainant,

v.

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

Appeal No. 2019002598

Agency No. 1E-891-0002-19

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency's decision dated February 25, 2019, dismissing his complaint of
unlawful employment discrimination in violation of the Age Discrimination in Employment Act
of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.

BACKGROUND

During the period at issue, Complainant worked as a Tractor Trailer Operator, PS-08, at the
Agency’s Las Vegas Post Office & Distribution Center facility in Las Vegas, Nevada.

On January 24, 2019, Complainant filed a formal complaint alleging that the Agency subjected
him to discrimination on the basis of age (67) when his request for continuation of pay through the
Department of Labor, Office of Workers’ Compensation Programs (OWCP) was denied following
his on-the-job injury on July 3, 2018.

In the instant final decision, the Agency dismissed this matter in its entirety for failure to stat a
claim pursuant to EEOC Regulation 29 C.F.R. §1614.107(a)(1). The Agency determined that the
instant complaint was a collateral attack on the OWCP process.
This appeal followed.

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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ANALYSIS AND FINDINGS

Under the regulations set forth at 29 C.F.R. Part 1614, an agency shall accept a complaint from an
aggrieved employee or applicant for employment who believes that he or she has been
discriminated against by that agency because of race, color, religion, sex, national origin, age or
disabling condition. 29 C.F.R. §§ 1614.103, .106(a). The Commission's federal sector case
precedent has long defined an “aggrieved employee” as one who suffers a present harm or loss
with respect to a term, condition, or privilege of employment for which there is a remedy. Diaz v.
Dep't of the Air Force, EEOC Request No. 05931049 (April 21, 1994). If complainant cannot
establish that s/he is aggrieved, the agency shall dismiss a complaint for failure to state a claim. 29
C.F.R. § 1614.107(a)(1).

An employee cannot use the EEO complaint process to lodge a collateral attack on another
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 (September 22, 1994); Lingad v.
U.S. Postal Serv., EEOC Request No. 05930106 (June 25, 1993).

The record indicates that on July 3, 2018, Complainant sustained an on-the-job injury when he
tripped over a piece of machinery causing pain and injury to his shoulder and neck. Complainant
applied to receive continuation of pay following his injury, but the OWCP denied his claim for
benefits. The proper forum for complainant to have raised his challenges to actions which occurred
during the OWCP adjudicatory process is within that forum itself. It is inappropriate to now
attempt to use the EEO process to collaterally attack an adjudicatory decision made by OWCP.
See Nobis v. U.S. Postal Serv., EEOC Appeal No. 0120081269 (March 20, 2008) (dismissing a
denial of COP claim as a collateral attack and therefore fails to state an actionable claim).

The instant formal complaint fails to state a claim under the EEOC regulations because
Complainant failed to show that he suffered harm or loss with respect to a term, condition, or
privilege of employment for which there is a remedy.

CONCLUSION

The Agency's final decision dismissing the formal complaint is AFFIRMED for the reasons
discussed above.

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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.

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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