Complainant,v.Patrick R. Donahoe, Postmaster General, United States Postal Service (Southwest Area), Agency.

Equal Employment Opportunity Commission

Jun 27, 2013

0120113355 (E.E.O.C. Jun. 27, 2013)

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

Complainant,

v.

Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southwest Area),
Agency.

Appeal No. 0120113355

Agency No. 4G-770-0151-11

DECISION

Complainant filed a timely appeal with this Commission from the Agency's decision dated May
26, 2011, dismissing her 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.,
Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C.
§ 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. § 621 et seq.

BACKGROUND

At the time of events giving rise to this complaint, Complainant worked as a Letter Carrier at
the Agency’s Willow Place Station in Houston, Texas. On May 6, 2011, Complainant filed a
formal complaint alleging that the Agency subjected her to discrimination on the bases of race
(Caucasian), national origin (Indian), sex (female), disability, age (51), and in reprisal for
prior protected EEO activity when:

1. Management has not controlled the smoking of carriers in the facility as per a
grievance settlement dated February 24, 2011; and

2. Since February 13, 2011 and continuing, management has not distributed the
overtime evenly, skipping her for overtime.

On May 26, 2011, the Agency dismissed the complaint pursuant to 29 C.F.R.
§ 1614.107(a)(1) for failure to state a claim. The Agency determined that both claims
constituted impermissible collateral attacks on the collective bargaining agreement.
Specifically, in claim (1), Complainant alleged dissatisfaction with the negotiated grievance
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procedure and in claim (2), Complainant alleged dissatisfaction with the distribution of
overtime pursuant to the collective bargaining agreement. As a result, the Agency dismissed
the complaint for failure to state a claim. The instant appeal followed.

CONTENTIONS ON APPEAL
On appeal, Complainant contends that the Agency’s dismissal was improper. As to claim (1),
Complainant argues that the Agency signed a grievance settlement agreeing that she had been
violated, but failed to complete the terms of the agreement. Further, as to claim (2),
Complainant contends that she has continually been intentionally skipped on the overtime
desired list. Accordingly, Complainant requests that the Commission reverse the Agency’s
dismissal.

ANALYSIS AND FINDINGS
The regulation set forth at 29 C.F.R. § 1614.107(a)(1) provides, in relevant part, that an
agency shall dismiss a complaint that fails to state a claim. 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, 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).
Regarding claim (1), the Commission has held that an employee cannot use the EEO complaint
process to lodge a collateral attack on another 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 (September 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 proceeding, such as the grievance process. In this
case, Complainant alleges that the Agency has failed to properly adhere to the terms of a
grievance settlement agreement. The proper forum for Complainant to raise concerns
regarding compliance with the grievance settlement is in the grievance forum, not the EEO
complaint process. Accordingly, the Agency's dismissal of claim (1) was proper.
The Commission finds, however, that the Agency improperly dismissed claim (2) as a
collateral attack on the collective bargaining agreement. Complainant claims that overtime is
not distributed evenly and she has been passed over for overtime since February 2011. The
Agency’s articulated reason for the action in dispute – that distribution of overtime is governed
by the collective bargaining agreement – goes to the merits of Complainant’s complaint, and is
irrelevant to the procedural issue of whether she has stated a viable claim under the anti-
discrimination statutes. See Osborne v. Dep’t of the Treasury, EEOC Request No. 05960111
(July 19, 1996); Lee v. U.S. Postal Serv., EEOC Request No. 05930220 (Aug. 12, 1993);
Ferrazzoli v. U.S. Postal Serv., EEOC Request No. 05910642 (Aug. 15, 1991). Complainant
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has alleged an injury or harm to a term, condition, or privilege of employment for which there
is a remedy. See Diaz v. Dep't of the Air Force

, EEOC Request No. 05931049 (Apr. 21,
1994).
CONCLUSION

Accordingly, the Agency's dismissal of claim (1) is AFFIRMED. The Agency’s dismissal of
claim (2) is REVERSED, and claim (2) is hereby REMANDED to the Agency for further
processing in accordance with this decision and the Order below.

ORDER (E0610)

The Agency is ordered to process the remanded claim (denial of overtime) in accordance with
29 C.F.R. § 1614.108. The Agency shall acknowledge to the Complainant that it has received
the remanded claim within thirty (30) calendar days of the date this decision becomes final.
The Agency shall issue to Complainant a copy of the investigative file and also shall notify
Complainant of the appropriate rights within one hundred fifty (150) calendar days of the date
this decision becomes final, unless the matter is otherwise resolved prior to that time. If the
Complainant requests a final decision without a hearing, the Agency shall issue a final decision
within sixty (60) days of receipt of Complainant's request.

A copy of the Agency's letter of acknowledgment to Complainant and a copy of the notice that
transmits the investigative file and notice of rights must be sent to the Compliance Officer as
referenced below.

IMPLEMENTATION OF THE COMMISSION’S DECISION (K0610)

Compliance with the Commission’s corrective action is mandatory. The Agency shall submit
its compliance report within thirty (30) calendar days of the completion of all ordered
corrective action. The report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC
20013. The Agency’s report must contain supporting documentation, and the Agency must
send a copy of all submissions to the Complainant. If the Agency does not comply with the
Commission’s order, the Complainant may petition the Commission for enforcement of the
order. 29 C.F.R. § 1614.503(a). The Complainant also has the right to file a civil action to
enforce compliance with the Commission’s order prior to or following an administrative
petition for enforcement. See 29 C.F.R. §§ 1614.407, 1614.408, and 29 C.F.R.
§ 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the
underlying complaint in accordance with the paragraph below entitled “Right to File a Civil
Action.” 29 C.F.R. §§ 1614.407 and 1614.408. A civil action for enforcement or a civil
action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing
of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R.
§ 1614.409.
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STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION

(M0610)
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 9-18 (Nov. 9, 1999). All requests and arguments must be
submitted to the Director, Office of Federal Operations, Equal Employment Opportunity
Commission, P.O. Box 77960, Washington, DC 20013. 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 (T0610)
This decision affirms the Agency's final decision/action in part, but it also requires the Agency
to continue its administrative processing of a portion of your complaint. 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 on both that portion of your complaint which
the Commission has affirmed and that portion of the complaint which has been remanded for
continued administrative processing. In the alternative, you may file a civil action after one
hundred and eighty (180) calendar days of the date you filed your complaint with the Agency,
or your appeal with the Commission, until such time as the Agency issues its final decision on
your complaint. 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
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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

(Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an
attorney, you may request from the Court that the Court appoint an attorney to represent you
and that the Court also permit you to file the action without payment of fees, costs, or other
security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et
seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c). The grant or
denial of the request is within the sole discretion of the Court. Filing a request for an attorney
with the Court does not extend your time in which to file a civil action. Both the request and
the civil action must be filed within the time limits as stated in the paragraph above (“Right to
File a Civil Action”).

FOR THE COMMISSION:

______________________________
Carlton M. Hadden, Director
Office of Federal Operations

June 27, 2013
Date