Zach P.,1 Complainant,v.Megan J. Brennan, Postmaster General, United States Postal Service (Headquarters), Agency.

Equal Employment Opportunity Commission

Nov 19, 2018

0120182797 (E.E.O.C. Nov. 19, 2018)

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

Zach P.,1
Complainant,

v.

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

Appeal No. 0120182797

Agency No. 66-000-0016-18

DECISION

Complainant filed an appeal with the Equal Employment Opportunity Commission (EEOC or
Commission) from the Agency's final decision dated September 29, 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.

BACKGROUND

During the period at issue, Complainant worked as a Postal Police Officer, Y-06, at the Agency’s
Postal Inspection Service in Detroit, Michigan.

On June 8, 2018, Complainant filed a formal complaint. Complainant claimed that the Agency
subjected him to discrimination based on race and in reprisal for prior protected EEO activity
when:

1) Agency management failed to comply with an arbitrator’s decisions, dated March 19,
2018 and April 30, 2018, rescinding his removal and reinstating Complainant to his
former position. Complainant stated that, during the hearing, management made false

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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and conflicting statements. Complainant indicated that management failed to reinstate
his security clearance, placed him on administrative leave, and then when the arbitrator
wrote a supplemental decision ordering him to be returned to work management
confined him to a room for 8 hours per day which he could not leave unescorted.

2) While Complainant was in an off-duty status, pending the arbitrator's decision,
Complainant was improperly charged health care premiums despite having switched
his health insurance over to his spouse's account.

On September 29, 2018, the Agency issued the instant final decision. The Agency dismissed the
both claims for failure to state a claim, finding them to be collateral attacks on other proceedings.

The instant appeal followed. On appeal, Complainant accuses the Agency of making an “end-run”
around the arbitration award and enforcement order that were favorable to him. Specifically,
Complainant alleged that non-white Agency management officials made false statements at the
arbitration in order facilitate his termination. He further states that these same non-white Agency
management officials had permitted three non-white coworkers to retain their security clearances,
although the Agency had charged them with far more egregious misconduct.

ANALYSIS AND FINDINGS

Claim 1

Claim 1 was properly dismissed, pursuant to 29 C.F.R. § 1614.107(a)(1), for failure to state a
claim. We have long held collateral attacks on non-EEO administrative proceedings through this
EEO process fail to state a claim. The proper forum for Complainant to challenge the Agency’s
non-compliance with the arbitrator's award was before the arbitration panel itself. See Estrada v.
Dep’t of Agric., EEOC Appeal No. 0120071677 (May 17, 2007), req. for recons. den., EEOC
Request No. 0520070724 (Nov. 5, 2007) citing Wills v. Dep’t of Def., EEOC Request No.
05970596 (Jul. 30, 1998) and Lingad v. U.S. Postal Serv., EEOC Request No. 05930106 (Jun. 25,
1993).

Claim 2

We determine, however, that the Agency’s decision dismissing Claim 2 was improper. We fail to
discern the nature of a collateral attack relating to this claim. Instead, to the extent that the claim
can be reasonably construed as Agency officials being the principals in the alleged action of
continuing to deduct health care premiums from his pay after he had declined that benefit from his
employment, we find that it states a justiciable claim pursuant to 29 C.F.R. § 1614.107(a)(1). See
Diaz v. Dep’t of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994).

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CONCLUSION

Accordingly, we AFFIRM the Agency's final decision dismissing Complainant's Claim 1.
However, we REVERSE the Agency’s dismissal of Claim 2. We REMAND Claim 2 to the
Agency for further processing in accordance with the ORDER below.

ORDER (E0618)
The Agency is ordered to process the remanded claim (claim 2) in accordance with 29 C.F.R. §
1614.108 et seq. The Agency shall acknowledge to Complainant that it has received the remanded
claim within thirty (30) calendar days of the date this decision was issued. 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 was
issued, unless the matter is otherwise resolved prior to that time. If 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.
As provided in the statement entitled "Implementation of the Commission’s Decision,” the Agency
must send to the Compliance Officer: 1) a copy of the Agency’s letter of acknowledgment to
Complainant, 2) a copy of the Agency’s notice that transmits the investigative file and notice of
rights, and 3) either a copy of Complainant’s request for a hearing, a copy of Complainant’s request
for a final agency decision, or a statement from the agency that it did not receive a response from
complainant by the end of the election period.

IMPLEMENTATION OF THE COMMISSION’S DECISION (K0618)

Under 29 C.F.R. § 1614.405(c) and § 1614.502, compliance with the Commission’s corrective
action is mandatory. Within seven (7) calendar days of the completion of each ordered corrective
action, the Agency shall submit via the Federal Sector EEO Portal (FedSEP) supporting documents
in the digital format required by the Commission, referencing the compliance docket number under
which compliance was being monitored. Once all compliance is complete, the Agency shall
submit via FedSEP a final compliance report in the digital format required by the Commission.
See 29 C.F.R. § 1614.403(g). The Agency’s final report must contain supporting documentation
when previously not uploaded, and the Agency must send a copy of all submissions to
Complainant and his/her representative.
If the Agency does not comply with the Commission’s order, Complainant may petition the
Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). 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, 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.
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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 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.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
The Commission may, in its discretion, reconsider the decision in this case if 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. 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 (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.
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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 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. Hadden’s signature
Carlton M. Hadden, Director
Office of Federal Operations

November 19, 2018
Date