[Redacted], Theo B., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Eastern Area), Agency.

Equal Employment Opportunity Commission

Jan 22, 2021

Appeal No. 2021000217 (E.E.O.C. Jan. 22, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Theo B.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Eastern Area), Agency. Appeal No. 2021000217 Hearing No. 520-2020-00147X Agency No. 4C-080-0174-18 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final order dated September 10, 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., 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 as a Technician at the Agency’s Downtown Station in Trenton, New Jersey. On March 12, 2018, prior to filing the EEO complaint directly at issue in this appeal (Agency No. 4C-080-0174-18), Complainant had filed an earlier EEO complaint (Agency No. 4C-080- 0047-18) claiming that he was discriminated against based on disability and in reprisal for prior protected EEO activity when, on November 27, 2017, he was not accommodated and was sent home and not permitted to return. At the same time, Complainant filed an appeal with the Merit 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. 2021000217 2 Systems Protection Board (MSPB) challenging the Agency’s determination that there was no work within Complainant’s medical restrictions for him, and therefore, the Agency sent him home on November 27, 2017.2 The MSPB Judge issued a June 14, 2018 Order and Summary of Telephonic Prehearing Conference, Therein, the MSPB Judge stated that Complainant had “withdrawn/opted not to pursue a claim of disability discrimination as an affirmative defense.” Thereafter, the MSPB Judge issued an initial decision on July 11, 2018, reversing the Agency’s decision. The MSPB Judge ordered that Complainant be restored to his limited duty assignment, or equivalent position, as of November 27, 2017, and the MSPB Judge ordered that Complainant was entitled to back pay and restored leave. The record indicates that Complainant was offered a limited duty assignment on July 24, 2018. However, as of October 26, 2018, there were outstanding matters related to back pay. On October 30, 2018, Complainant filed a petition with the MSPB seeking enforcement of the MSPB Judge’s July 11, 2018 Order. A December 17, 2018 order from the MSPB Judge indicates that Complainant’s back pay and restored leave were the two outstanding matters addressed in the petition for enforcement. On August 9, 2019, the MSPB Judge issued an initial decision on the petition for enforcement finding that all compliance matters were resolved and denied Complainant’s petition for enforcement. On November 20, 2018, Complainant filed the instant EEO complaint, identified as Agency No. 4C-080-0174-18. As summarized by the Agency, Complainant claimed that he was discriminated against based on disability and in reprisal for prior protected EEO activity when on July 24, 2018, management did not retroactively reinstate him to his former position per an EEOC Order in the McConnell3 class case. 2 On April 18, 2019, EEOC issued a decision affirming the dismissal of Complainant’s EEO complaint (Agency No. 4C-080-0047-18), pursuant to 29 C.F.R. § 1614.107(a)(4), because he had elected to adjudicate the claim through the MSPB. While acknowledging that Complainant did not raise discrimination and retaliation claims as part of his MSPB appeal, the decision found that he could have done so. See Kidd v. Dep’t of the Navy, EEOC Appeal No. 0120121751 (June 28, 2012) (affirming the dismissal of complaint pursuant to 29 C.F.R. § 1614.107(a)(4) where Complainant failed to allege discrimination before the MSPB on the same matter). See also, Adam N. v. U.S. Postal Service, EEOC Appeal No. 2019001249 (Apr. 18, 2019). 3 The McConnell class action concerns a class of Agency rehabilitation and limited duty injured- on-duty (IOD) employees whose positions were assessed by the Agency’s National Reassessment Program (NRP) between May 5, 2006 and July 1, 2011. An EEOC AJ found the NRP subjected qualified rehabilitation and limited duty employees to disparate treatment which result in rehabilitation and limited duty IOD employees with disabilities having their reasonable accommodations withdrawn, as well as being subjected to disability-based harassment and having their confidential medical information accessed by unauthorized person. EEOC Appeal 2021000217 3 On December 19, 2018, the Agency dismissed the complaint for failure to state a claim, arguing that the complaint was alleging noncompliance with an EEOC Order pertaining to the McConnell class action rather than an independent claim of discrimination. Complainant appealed. On June 4, 2019, EEOC issued its appellate decision determining that Complainant’s complaint was not identical to the McConnell class action and that Complainant had set forth a new claim of discrimination alleging that when he was returned to work, he was not placed in his prior position at the Downtown Trenton facility based on his protected bases. Therefore, the Commission reversed the Agency’s dismissal and remanded the complaint to the Agency for processing. See Sylvester C. U.S. Postal Service, EEOC Appeal No. 2019002924 (June 4, 2019). On remand, Complainant elected a hearing before an EEOC Administrative Judge (AJ). Before the AJ, the Agency argued that the complaint should still be dismissed because it constituted a collateral attack on the decisions of the MSPB in the related earlier matter. On September 3, 2020, the AJ dismissed the formal complaint finding that Complainant’s formal complaint constituted a collateral attack on another proceeding. The instant appeal followed. On appeal, Complainant, through counsel, argues that his petition for enforcement with the MSPB did not include claims regarding his return to the Agency on July 24, 2018. Complainant indicates that when he returned to work, he was assigned to a different facility with more difficult jobs. Complainant asserts that this claim, regarding whether the job location and job duties were discriminatory based on disability and in reprisal for prior protected EEO activity, is a new issue that has not been raised at any forum. Consequently, Complainant argues that the “complaint at issue does not raise the same issues involved at the MSPB, and [therefore,] this complainant cannot be a collateral attack on the MSPB decision.” ANALYSIS AND FINDINGS 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 (Sept. 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 adjudicatory proceedings, 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). Nos. 0720160006, 0720160007 (Sept. 25, 2017), req. for recons.den. 0520180094, 0520180095 (Mar. 9, 2018). 2021000217 4 Here, the record reflects that the MSPB adjudicated Complainant’s claim that he was removed from his limited duty assignment and placed off work. The MSPB ordered, among other remedies, that the Agency to restore Complainant to his former limited duty assignment or to an equivalent assignment. The essence of Complainant’s current EEO complaint is that the Agency did not comply with that order. Instead, Complainant alleges that he was assigned to a different facility with more difficult work. Based on the unique facts of this case, we conclude that the proper forum for Complainant to raise his challenges to the Agency’s implementation of the MSPB’s July 11, 2018 remedy regarding his assignment and duties upon his return to the office is within the MSPB process. In so finding, we recognize that Complainant is now arguing that the Agency was motivated by discriminatory and/or retaliatory animus when it made the assignment upon his reinstatement. Nonetheless, we believe that the MSPB is in a better position to enforce the Agency’s good faith compliance with its order, and is the proper forum to decide if the position to which Complainant was assigned was equivalent (as it ordered) to his former limited duty assignment.4 CONCLUSION We AFFIRM the Agency’s final order implementing the AJ’s dismissal of the EEO complaint identified as Agency No. 4C-080-0174-18 because it is correctly characterized as an improper collateral attack on the adjudicatory decisions of the MSPB. 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). 4 We note that the MSPB Judge determined on August 9, 2019, that there were no outstanding compliance matters regarding the MSPB Judge’s July 11, 2018 order and remedies. Therefore, Complainant may have to file another petition for enforcement on this matter with the MSPB. 2021000217 5 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 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. 2021000217 6 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 January 22, 2021 Date