0120170823
04-14-2017
Clemente M.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Clemente M.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Southern Area),
Agency.
Appeal No. 0120170823
Agency No. 4G-780-0218-16
DECISION
On December 14, 2016, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated November 15, 2016, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Carrier (City) at the Agency's San Marcos Post Office in Texas.
On October 17, 2016, Complainant filed a formal complaint alleging that the Agency discriminated against him based on reprisal for his prior protected equal employment opportunity (EEO) activity under Title VII when:
1. On December 31, 2015, it put him off duty on an emergency basis;
2. On March 31, 2016, it failed to comply with grievance decision/resolution 16080393 dated February 4, 2016, to pay him back pay for the above off duty;
3. On April 22, 2016, he was issued a Notice of Removal (unrelated to issue 1);2 and
4. On September 15, 2016, it failed to comply with grievance decision/resolution 16682520 dated September 9, 2016, requiring the Agency to process the back-pay adjustment referenced in issue 2.
The Agency dismissed issues 1, 2 and 3 for failure to timely initiate EEO counseling. It reasoned that Complainant did not initiate EEO counseling until September 13, 2016, far beyond the 45-calendar day limit. Citing Commission precedent, the Agency found that filing a grievance does not toll the time limit to initiate EEO counseling.
The Agency dismissed issues 2 and 4 for failure to state a claim. Citing Commission precedent, the Agency reasoned that these issues constituted an impermissible collateral attack on another proceeding (the negotiated grievance process).
ANALYSIS AND FINDINGS
An aggrieved person must seek EEO counseling within 45 days of the date of the alleged discriminatory action, or in the case of a personnel action, within 45 days of the effective date of the action. 29 C.F.R. � 1614.105(a)(1) & .107(a)(2). The utilization of internal agency procedures, union grievances, and other remedial processes does not toll the time limit for contacting an EEO counselor. Ellis v. United States Postal Service, EEOC Appeal No. 011992093 (Nov. 29, 2000). Applying the above, we affirm the Agency's dismissal of issues 1, 2 and 3 for failure to timely initiate EEO counseling.
Generally, a collateral attack on another proceeding fails to state a claim. 29 C.F.R. � 1614.107(a)(1); Lingad v. United States Postal Service, EEOC Request No. 05930106 (June 24, 1993). A collateral attack involves a challenge to another forum's proceeding, such as the grievance process. In this case, Complainant alleges that the Agency failed to adhere to the terms of two grievance decisions/resolutions. The proper forum for Complainant to raise this is in the grievance forum where the decisions/resolutions occurred, not the EEO complaint process. Accordingly, we affirm the Agency's dismissal of issues 2 and 4 for failure to state a claim.
The FAD is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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. The requests 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 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. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
April 14, 2017
__________________
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.
2 On October 15, 2016, pursuant to a collective bargaining agreement, an arbitrator issued an award reinstating Complainant with back pay.
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