Ceola K.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity Commission

Nov 2, 2018

0120182103 (E.E.O.C. Nov. 2, 2018)

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

Ceola K.,1
Complainant,

v.

Megan J. Brennan,
Postmaster General,
United States Postal Service,
Agency.

Appeal No. 0120182103

Agency No. 4G-320-0069-18

DECISION

Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency's final decision dated May 3, 2018, 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 for the Agency as a Rural Carrier in
Tallahassee, Florida.

On April 13, 2018, Complainant filed a formal complaint, claiming that she was subjected to
discrimination based on race, national origin, disability, and in reprisal for prior protected
activity.

On May 3, 2018, the Agency issued a final decision. The Agency determined that the formal
complaint was comprised of nine claims, which it identified as follows:

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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1. On February 1, 2016, Complainant was required to work beyond her medical
restrictions, which resulted in her having an injury on duty on February 11, 2016;

2. On February 11, 2016, through February 29, 2016, management improperly used
Complainant’s sick leave;2

3. In March 2016, Complainant’s bid route #62 was evaluated and decreased in size,
which reduced Complainant’s salary;

4. On April 29, 2016, and July 1, 2016, Complainant failed to receive a response
after requesting light duty;

5. On unspecified dates, Complainant became aware that management provided
inaccurate information to the Department of Labor, Office of Workers
Compensation, (OWCP), regarding Complainant’s claim for compensation;

6. On September 30, 2016, Complainant was forced to apply for disability
retirement;

7. On November 25, 2017, after being absent from work for over two years,
Complainant was placed in a phantom route; 3

8. In January 2018, Complainant became aware that her former assigned route #62
was increased in size and salary shortly after she retired, on December 4, 2017;
and

9. On February 23, 2018, Complainant received a letter of indebtedness for an
undisclosed amount.

In its May 3, 2018 final decision, the Agency dismissed Complainant’s appeal on multiple
grounds. First, the Agency dismissed claims 1-5 pursuant to 29 C.F.R. § 1614.107(a)(1), finding
that the claims were pending before or had been decided by the Agency or Commission.
Specifically, the Agency stated that the identical claims were raised in Agency Case No. 4G-320-
0058-16.

2 We clarify that the record supports that Complainant’s sick leave was used during the period of
February 11, 2016 through April 29, 2016.

3 A fair reading of the formal complaint reflects that Complainant stated that she was
prematurely placed in a phantom route on November 25, 2017 because her last working day was
April 29, 2016 and she had not worked her rural route for two years, in order to trigger
placement in a phantom route per terms of the rural carrier contract.
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The Agency also dismissed claims 5, 8, and 9 for failure to state a claim, pursuant to 29 C.F.R. §
1614.107(a)(1). The Agency found that Complainant was lodging a collateral attack on the
proceedings of another forum with respect to claims 5 and 9, and that Complainant did not have
standing to appeal claim 8 because Complainant was not employed with the Agency at the time
she asserts the discrimination occurred.

Finally, the Agency dismissed claims 1-4, 6 and 7 pursuant to 29 C.F.R. § 1614.107(a)(2) for
untimely EEO Counselor contact.

The instant appeal followed. On appeal, Complainant, though her attorney, resubmits copies of
her formal complaint, the Agency final decision, and the EEO Counselor’s report. Complainant
argues that the “issues were wrongly explained in the dismissal.” Complainant further states that
her attorney “will provide another response to be added to [her] appeal.” We have not received
an additional statement or brief from Complainant’s attorney regarding her appeal.

ANALYSIS AND FINDINGS

Claims 1-5: Stating same claim raised in a prior complaint

The regulation set forth at 29 C.F.R. § 1614.107(a)(1) provides that an agency shall dismiss a
complaint that states the same claim that is pending or has been decided by the agency or
Commission.

The record indicates that Complainant amended a formal complaint (hereinafter referred to as
“C-1”), Agency Case Number 4G-320-0058-16, filed with the Agency on May 13, 2016. The
record contains a copy of the Agency’s acknowledgement of the amendment as well as a
summary of Complainant’s allegations of discriminatory harassment on the bases of national
origin, disability, and in reprisal for prior EEO activity. The record also contains a copy of the
Agency’s case details for C-1. Upon review, we find that the allegations Complainant raises in
C-1 are the same allegations Complainant states in claims 1-5 in the instant formal complaint.
Specifically, C-1 and the claims at issue here allege that Complainant worked beyond her
medical restrictions beginning February 2016; Complainant’s route was reduced in March 2016;
management charged Complainant sick leave; management denied Complainant a reasonable
accommodation; and management provided Complainant incorrect information to the
Department of Labor concerning her work-related injury.

Therefore, the Commission finds that claims 1-5 were properly dismissed pursuant to 29 C.F.R.
§ 1614.107(a)(1) because the claims are pending before the Agency.

Because we affirm the Agency’s decision to dismiss claims 1-5, we do not find it necessary to
address the Agency’s decision to dismiss these claims on alternative grounds.

Claims 6 and 7: Untimely EEO Counselor Contact
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The regulation set forth at 29 C.F.R. § 1614.107(a)(2) states, in relevant part, that the agency
shall dismiss a complaint or a portion of a complaint that fails to comply with the applicable time
limits contained in 29 C.F.R. § 1614.105. Under 29 C.F.R. § 1614.105(a)(1), an aggrieved
person must initiate contact with an EEO Counselor within 45 days of the date of the matter
alleged to be discriminatory, the effective date of an alleged discriminatory personnel action, or
the date that the aggrieved person knew or reasonably should have known of the discriminatory
event or personnel action.

We concur with the Agency that EEO Counselor contact was untimely regarding both claims. A
fair reading of Complainant’s allegations is that she has been constructively discharged from her
employment with the Agency. Complainant asserts, in her formal complaint, that management
“made [her] working conditions so difficult that a reasonable person in [her] position would have
felt compelled to separate and retire.” The record includes a SF-50 notification of personnel
action indicating that Complainant’s disability retirement was effective December 4, 2017.
Because Complainant alleges discrimination with respect to a personnel action, Complainant was
required to contact an EEO counselor within “45 days of the effective date of the action.”
29 C.F.R. § 1614.105(a)(1). Therefore, Complainant had 45 days, or until January 18, 2018, to
timely initiate contact with an EEO Counselor. However, the record indicates that Complainant
initiated EEO Counselor contact on January 19, 2018, one day beyond the limitation period.

On appeal, Complainant has presented no persuasive arguments or evidence warranting an
extension of the time limit for initiating EEO Counselor contact. Therefore, the Commission
finds that claims 6 and 7 were properly dismissed pursuant to 29 C.F.R. § 1614.107(a)(2) for
untimely EEO Counselor contact.

Claim 8: Failure to state a claim

EEOC Regulation 29 C.F.R. §1614.107(a)(1) provides for the dismissal of a complaint which
fails to state a claim within the meaning of 29 C.F.R. §1614.103. In order to establish standing
initially under 29 C.F.R. §1614.103, a complainant must be either an employee or an applicant
for employment of the agency against which the allegations of discrimination are raised. In
addition, the claims must concern an employment policy or practice which affects the individual
in his or her capacity as an employee or applicant for employment. An agency shall accept a
complaint from any 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; §1614.106(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 (Apr. 21, 1994).

Here, the Agency rejected Complainant’s complaint because she was no longer employed with
the agency in January 2018 when she discovered that her route had increased in size and salary
shortly after her retirement in December 2017.
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The Commission has held that former employees who can still be affected by the outcome of a
complaint may be considered ‘aggrieved’ within the meaning of Commission regulations. See
Sternberg v. Dep’t of Defense (Dependents Schools), EEOC Request No. 05890976 (Jan. 8,
1990).

Given the circumstances regarding this case, however, we do not find that Complainant is
aggrieved regarding this claim. Specifically, the record indicates that Complainant discovered
through a SF 50 notification of personnel action that her route increased in size and salary after
she had retired. Complainant has not asserted how the SF 50 personnel notification caused her
present harm or loss. Therefore, the Commission finds that claim 8 was properly dismissed
pursuant to 29 C.F.R. § 1614.107(a)(1) for failure to state a claim.

Claim 9: Failure to state a claim (collateral attack)

A claim shall be dismissed for failure to state a claim where the complainant impermissibly uses
the EEO complaint process to lodge a collateral attack on another forum's proceeding. A claim
that can be characterized as a collateral attack, by definition, involves a challenge to another
forum's proceeding, such as the grievance process, the workers' compensation process, an
internal agency investigation, or state or federal litigation. See Fisher v. Dep't of Defense, EEOC
Request No. 05931059 (July 15, 1994). Accordingly, the proper forum for a complainant to
raise challenges to the Letter of Demand, as set forth in claim 9, is under the Debt Collection Act
process. Complainant v. U.S. Postal Serv., EEOC Appeal No. 0120132152 (Aug. 14, 2015).

We determine that claim 9 was properly dismissed pursuant to 29 C.F.R. § 1614.107(a)(1), for
failure to state a claim due to lodging a collateral attack on the proceedings of the Debt
Collection Act.

Accordingly, we AFFIRM the Agency's final decision dismissing all claims in the instant matter.

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.
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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.
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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
November 2, 2018
Date