[Redacted], Maximo S.,1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Western Area), Agency.

Equal Employment Opportunity Commission

Mar 9, 2021

Appeal No. 2021001602 (E.E.O.C. Mar. 9, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Maximo S.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Western Area), Agency. Appeal No. 2021001602 Agency No. 4E-852-0181-20 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated November 23, 2020, 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. BACKGROUND During the period at issue, Complainant worked as a City Letter Carrier at the Agency’s Casa Grande, Arizona Post Office. On October 9, 2020, Complainant filed the instant formal complaint (identified as Agency No. 4E-852-0181-20) (“Complaint 2’). Complainant claimed that the Agency subjected him to discrimination based on race, religion, color, and in reprisal for prior EEO activity when: 1. on August 18, 2020, a management official testified that he considered Complainant’s previous EEO activity when he made his decision to remove him; 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. 2021001602 2 2. on September 15, 2020, a management official admitted that he retaliated against Complainant when it came to overtime opportunities because of his EEO activity; and 3. on September 24, 2020, a management official admitted he considered Complainant’s previous EEO activity in making his decision whether or not to remove him. By way of background, Complainant was placed in an indefinite off-duty status on December 12, 2019. On January 14, 2020, Complainant filed an EEO complaint (identified as Agency Case No. 4E-852-0039-20) (“Complaint 1”). On April 2, 2020, Complainant was issued a decision terminating his employment with the Agency based on the incident for which he was put off- duty. Complainant filed an appeal with the Merit Systems Protection Board (MSPB) (MSPB Docket No. DE-0752-20-0208-I-1). He also sought to amend his EEO complaint to include the termination. However, the Agency dismissed Complaint 1 in its entirety, reasoning that all the matters raised in the complaint derived directly from the incident that resulted in Complainant’s termination and, therefore, were inextricably intertwined with Complainant’s MSPB appeal. Complainant appealed the dismissal and subsequently, on October 8, 2020, the Commission issued a decision affirming the dismissal. See EEOC Appeal No. 2020003637, request for reconsideration denied, EEOC Request No. 2021000253 (February 3, 2021).2 In a November 23, 2020 final decision, the Agency has now dismissed Complaint 2, pursuant to 29 C.F.R. § 1614.107(a)(1), for stating the same claims which had been raised in Complaint 1 (Agency Case No. 4E-852-0039-20). The Agency also dismissed the complaint as a collateral attack on the MSPB adjudicatory process. The Agency stated that Complainant should have raised his allegations through the MSPB process, and not through the EEO complaint process. The instant appeal followed. ANALYSIS AND FINDINGS The Agency dismissed the instant complaint reasoning the claims raised constituted a collateral attack on the MSPB’s adjudication of Complainant’s termination and related events. A claim that can be characterized as a collateral attack, by definition, involves a challenge to another forum's adjudicatory proceeding. See, e.g., Fisher v. Dep't of Defense, EEOC Request No. 05931059 (July 15, 1994) (challenge to agency's appeal within the workers' compensation process fails to state a claim as an EEO complaint); Lingad v. United States Postal Service, EEOC Request No. 05930106 (June 23, 1994) (challenge to evidentiary ruling in grievance process fails to state a claim as an EEO complaint). Here, the record is clear that Complainant filed an appeal with the MSPB to his indefinite suspension and ultimate termination. 2 In the appellate decision, the dismissal of one claim of unlawful interference with the EEO process (claim 7) was reversed and remanded to the Agency for further processing. 2021001602 3 During the MSPB proceedings, Complainant claims that evidence was presented that indicated that the management officials responsible for his termination were motivated by unlawful retaliatory animus. This purported evidence is the basis of his current EEO complaint (Complaint 2). We find that the Agency correctly dismissed Complaint 2 as a collateral attack on the MSPB adjudication. Complainant’s termination is being adjudicated before the MSPB and the evidence Complainant is now trying to raise in the EEO complaint process is available for consideration by the MSPB in its deliberations on Complainant’s appeal. The proper forum for Complainant to raise this affirmative defense (retaliatory animus) to his termination is before the MSPB during its adjudication of that termination decision. As such, we affirm the Agency’s dismissal of EEO Complaint 2. Because we are affirming the dismissal of the EEO complaint as an improper collateral attack on the MSPB proceeding, we need not address the Agency’s alternative dismissal grounds - that this complaint raises the same matters that were raised in Complainant’s prior EEO complaint (Complaint 1). CONCLUSION The Agency’s final decision dismissing the formal complaint for the reasons stated above is AFFIRMED. 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 2021001602 4 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). 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. 2021001602 5 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 March 9, 2021 Date