0120160685
03-01-2016
George M.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Northeast Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
George M.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Northeast Area),
Agency.
Appeal No. 0120160685
Agency No. 4B110009115
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated October 22, 2015, dismissing his 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
At the time of events giving rise to this complaint, Complainant worked as a letter carrier for the collection unit at the Agency's processing and distribution center in Brooklyn, New York.
On November 13, 2013, Complainant was assaulted by a citizen while in uniform performing his official duty of delivering mail. Complainant's attacker, a large, white man, yanked Complainant's sunglasses off of his face and snapped them in half; shouted racial slurs and insults concerning Complainant's ethnicity and color; physically injured Complainant's back, neck and shoulder to such an extent that he could not complete his route, and caused Complainant to develop post-traumatic stress disorder (PTSD), the effects of which are ongoing.
After the attack, Complainant contacted the Postal Inspection Service Office and filed a police report with the New York City Police Department ("NYPD"). Complainant was interviewed by a Postal Inspector. who also notified the NYPD of the details of the attack and provided her testimony as evidence. The NYPD identified and arrested Complainant's attacker for "felony assault."
The criminal charges against Complainant's attacker were filed in state rather than federal court. Complainant's attacker was charged with "attempted assault" and other non-felony charges. On October 31, 2014, Complainant's attacker was convicted of attempted assault and menacing in the third degree (but, as clarified by the presiding judge, not as a "hate crime") and sentenced to 60 days imprisonment, and a $1000 fine plus court fees.
On September 17, 2015, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (African-American), sex (Male), color (Black), and disability (injuries related to the assault) when, after he was assaulted on November 13, 2013, the two Postal Inspectors ("P1" and "P2," both Caucasian females) assigned to the case did not handle it properly.
The Agency dismissed Complainant's complaint, pursuant to 29 C.F.R. � 1614.107(a)(2), for untimely EEO Counselor contact, and 29 C.F.R. �1614.107(a)(1), for failure to state a claim.
The instant appeal followed. On appeal, Complainant clarified that he was alleging that the improper handling of his case by P1 and P2 involved the following:
1. P1 and P2 failed to contact a U.S. Attorney to pursue the assault as a hate crime, and apply charges based on 18 U.S.C. � 1114, the federal regulation governing civilian attacks of post officers, which result in stricter penalties than what Complainant's attacker ultimately received;
2. P1 and P2 allowed the matter to be brought in state instead of federal court, then failed to intervene when the State decreased the severity of the charges against Complainant's attacker and did not charge him with a hate crime; and
3. On February 10, 2015, and July 22, 2015, Complainant wrote to P1 requesting a written explanation of her comment to him that he would get "more bang for [his] buck" if the citizen who attacked him was tried in state rather than federal court, and she would not respond, which caused him to feel he was in a hostile work environment.
ANALYSIS AND FINDINGS
The regulation set forth at 29 CF.R. � 1614.107(a)(1) provides, in relevant part, that an Agency shall dismiss a complaint that fails to state a claim. The Commission has generally held that complaints involving other adudicatory proceedings and related processes, including proceedings in federal and state courts, do not state a claim within the meaning of its regulations. See Hogan v. Dep't of the Army, EEOC Request No. 05940407 (Sep. 29, 1994); Complainant v. United States Postal Serv., EEOC Appeal No. 0120130222 (Feb. 25, 2013) (dismissing a claim alleging that agency officials failed to enforce a grievance arbitration decision as a collateral attack on another forum's proceeding, and finding that Complainant must seek enforcement within the negotiated grievance process) Lambert v. Social Security Administration, EEOC Appeal No. 01A15184 (Nov. 26, 2002), request for reconsideration denied, EEOC Request No. 05A30330 (Feb. 6, 2003), (finding an allegation that the agency violated the Privacy Act failed to state a claim, noting that jurisdiction for Privacy Act claims rests with the U.S. District Court)
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). 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, or, as in this instance, an internal agency investigation and state or federal litigation. See Fisher v. Dep't of Defense, EEOC Request No. 05931059 (July 15, 1994) The Commission's rejection of such claims includes instances where the claim of harassment is based on the actions of Agency officials. For instance, claims where complainant alleges an agency official discriminated against him or her by delaying filing or creating an error on a workers' compensation claim, which is an administrative process within the jurisdiction of the Department of Labor, fail to state a claim. The Commission has found that by reviewing these claims it would essentially have to make a determination on the alleged errors or the process itself, which would result in a collateral attack on another proceeding. See Schneider v. United States Postal Serv., EEOC Request No. 05A01065 (Aug. 15, 2002), Bell v. Dep't of Transportation, EEOC Appeal No. 01991806 (Jan. 11, 2001), Hogan v. Dep't of the Army, supra. The proper jurisdiction for Complainant to bring the claim may be found in the statue governing the process. See Dye v. United States Postal Serv., EEOC Appeal No. 01A30060 (Feb. 6, 2003)
Complainant's claim was properly dismissed pursuant to 29 C.F.R. �1614.107(a)(1), as an attempt to use the EEO process as a collateral attack on the another adjudicatory proceeding. We agree with the Agency's observation that Complainant is essentially dissatisfied with the exercise of prosecutorial discretion and the state court's sentencing of his attacker. Complainant's attempt to place the focus on the actions of P1 and P2 does not change this conclusion.
Given that Complainant has failed to state a claim pursuant to 29 C.F.R. �1614.107(a)(1), we decline to examine the matter of untimely EEO Counselor contact.
CONCLUSION
Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)
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 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, 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 (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 signature
Carlton M. Hadden, Director
Office of Federal Operations
March 1, 2016
__________________
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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