U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Whitney G.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Eastern Area), Agency. Appeal No. 0120161289 Agency No. 4B100002016 DECISION Complainant filed a timely appeal with this Commission from the Agency's January 5, 2016 dismissal of 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 the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant was a Maintenance Worker (PS-4) at the Agency's Franklin D. Roosevelt Station in New York City, New York. On December 16, 2015, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (Hispanic), national origin (Puerto Rican), age (71), and reprisal for prior protected EEO activity2 when: 1. on October 22, 2015, the Agency refused to pay him for eight hours of "official time" while he was attending to EEO/EEOC matters; 2. on unspecified dates, the Agency falsely recorded his EEO/EEOC-related absences as AWOL, LWOP, or annual/sick leave instead of "official time;" 3. on an unspecified date, the Agency refused to remove a "false failing" rating on his training records for Course No. 19601-36 8 35-9607; and 4. on an unspecified date, his Weingarten rights were violated when he was refused union representation. The Agency dismissed Complainant's complaint, pursuant to 29 C.F.R. § 1614.107(a)(1), for failure to state a claim. The instant appeal followed. ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R. § 1614.107(a)(1) provides, in relevant part, that an Agency shall dismiss a complaint that fails to state a claim. An Agency shall accept a complaint from any aggrieved employee or applicant for employment who believes that he or she has been discriminated against by that agency because of race, color, religion, sex, national origin, age or disabling condition. 29 C.F.R. §§ 1614.103, .106(a). The Commission's federal sector case precedent has long defined an "aggrieved employee" as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. See Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (April 21, 1994). If complainant cannot establish that s/he is aggrieved, the agency shall dismiss a complaint for failure to state a claim. 29 C.F.R. § 1614.107(a)(1) Regarding Complainant's reprisal allegation, the Commission has stated that adverse actions need not qualify as "ultimate employment actions" or materially affect the terms and conditions of employment to constitute retaliation. Lindsey v. United States Postal Serv., EEOC Request No. 05980410 (Nov. 4, 1999) Instead, claims based on statutory retaliation clauses are reviewed "with a broad view of coverage. Under Commission policy, a complainant is protected from any retaliatory discrimination that is reasonably likely to deter... complainant or others from engaging in protected activity." Maclin v. United States Postal Serv., EEOC Appeal No. 0120070788 (Mar. 29, 2007) Claims 1 and 2 - Official Time As an initial matter, we find that Claim 2 is too vague and broad to state a viable separate claim and appears to have been offered in support of Complainant's contention in Claim 1 that, like occasions in the past (Claim 2), the Agency denied his request for official time and recorded his absence incorrectly as LWOP. Therefore, we will consider Claims 1 and 2 as part of a single claim (hereinafter referred to as "Claim 1"). In Claim 1, Complainant contends that the Agency denied his request for 8 hours of official time on October 8, 2015, "to attend to EEO/EEOC matters" and, instead, recorded his absence as LWOP. Complainant raised the matter with an EEO counselor as part of the instant complaint. Since it concerned a denial of official time related to another EEO complaint, his allegation was properly forwarded to the appropriate Agency official for a separate inquiry and determination. See EEOC Management Directive 110 ("MD-110") at 6-16, 6-17 (Aug. 5, 2015). On December 3, 2015, the Agency official issued a Determination ("the Determination"), which upheld the denial of official time on October 8, 2015, and included appeal rights to either EEOC's Office of Federal Operations (OFO) or an EEOC Administrative Judge (AJ) once the Agency issued a final decision on the "underlying complaint."3 EEOC Regulation 29 C.F.R. § 1614.605(b) provides, in pertinent part, that if a complainant is otherwise in pay status, the agency shall consider him to be on official time, regardless of tour of duty, when his presence is authorized or required by the agency or the Commission during the investigation, informal adjustment, or hearing on a complaint. The Commission has stated that a claim regarding the denial of official time concerns a violation of the Commission's regulations and does not require a determination of whether the denial was motivated by discrimination. See Edwards v. United States Postal Serv., EEOC Request No. 05960179 (Dec. 23, 1996). The Commission held that such a claim should not be processed in accordance with 29 C.F.R. 1614.108 et seq., since the focus is not on the motivation, but rather on the justification of why the complainant was denied a reasonable amount of official time. Edwards, supra. When a request for official time is denied in whole or part while either OFO or an AJ is presiding over the matter, a copy of the agency's denial of official time with the requisite explanation should be provided to OFO or the AJ. MD-110 at 6-16. Where there is a finding in the complainant's favor, "the AJ or OFO may order the agency to restore such personal leave as the complainant may have used in lieu of official time." See Tipton v. Dep't of Transportation, EEOC Appeal No. 0120020654 (Nov. 3, 2003); citing Pollack v. Dep't of the Treas., EEOC Appeal No. 0720010039 (Mar. 8, 2002). As such, here we conclude that Claim 1 should not be processed as a separate claim of discrimination, but forwarded to the AJ assigned to hear the underlying complaint for further consideration. An order to that effect will follow. Claim 3 - Training Record Under 29 C.F.R. § 1614.107(a)(1), an agency shall dismiss a complaint that states the same claim that is pending before or has been decided by the Commission or the Agency. To be dismissed as the "same claim," the present formal complaint and prior complaint must have involved identical matters. The Commission has consistently held that in order for a formal complaint to be dismissed as identical, the elements of the complaint must be identical to the elements of the prior complaint in time, place, incident, and parties. See Jackson v. United States Postal Serv., EEOC Appeal No. 01955890 (Apr. 5, 1996); Rainville, supra. The Agency properly dismissed Claim 3 for stating the same claim Complainant raised in a previous complaint, identified as Agency No. 4A100003309. Specifically, the prior claim alleged, "[m]anagement refused to remove "False Failing" from [Complainant's] training records (Course No. 19601-36)(35-9607) / Blood Borne Pathogen training." A hearing was held before an AJ, who dismissed the prior claim in a bench decision. The Agency adopted the AJ's decision and Complainant appealed to this Commission, which, after careful review, also upheld the AJ's dismissal. See EEOC Appeal No. 0120112502 (Oct. 6, 2011), reconsideration denied, EEOC Request No. 0520120115 (May 9, 2012). On appeal, Complainant does not dispute that Claim 3 states the same claim as one he raised in Agency No. 4A100003309. Instead, he appears to argue that the AJ's dismissal of Agency No. 4A100003309 is invalid because it was based on "fraudulent documents and false testimony." We find the record devoid of evidence to support this allegation. To the extent Complainant may be using Claim 3 to introduce new evidence and explanations concerning a previously adjudicated claim, this Commission has held that "finding a new comparison... or arguing a different theory of law does not create a new claim." Doleshal v. Dep't of Health & Human Servs., EEOC Appeal No. 01A40020 (July 29, 2004); see also, Complainant v. United States Postal Serv., EEOC Appeal No. 0120132933 (Jan. 14, 2014) ("Complainant cannot reassert his prior EEO complaint simply because he now has collected further evidence in support of his claim."). Hence, Claim 3 was properly dismissed for failure to state a claim. Claim 4 - Union Representation Under 29 C.F.R. § 1614.107(a)(1), the EEO process cannot be used to lodge a collateral attack against another proceeding. "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 unemployment compensation process, or the workers' compensation process." See Lingad v. United States Postal Serv., EEOC Request No. 05930106 (June 25, 1993); Kleinman v. United States Postal Serv., EEOC Request No. 05940585 (Sept. 22, 1994); Wills v. Dep't of Def., EEOC Request No. 05970596 (July 30, 1998). Thus, a claim involving an issue relating to union representation (e.g. denial of Weingarten Rights) constitutes a collateral attack on the grievance process. See Spiwak v. United States Postal Serv., EEOC Appeal No. 01991180 (Jan. 26, 2001); Shibel v. Dep't of the Navy, EEOC Appeal No. 01987064 (Aug. 12, 1999). We have maintained this precedent even when applying the "broad view of coverage" afforded reprisal claims. See Complainant v. United States Postal Serv., EEOC Appeal No. 0120142489 (Oct. 23, 2014). For these reasons, we conclude that Claim 4, as alleged by Complainanat, constitutes a collateral attack on the grievance process and was properly dismissed for failure to state a claim. The proper forum to raise a claim regarding a violation of Weingarten Rights is through the grievance process under the collective bargaining agreement or before the Federal Labor Relations Authority. See Simensen v. United States Postal Serv., EEOC Appeal No. 0120021068 (Feb. 26, 2002). On appeal, Complainant argues, and we do not dispute, that his Weingarten Rights are a protection established by the United States Supreme Court. See generally NLRB v. Weingarten, Inc., 420 U.S. 251 (1975). As with our dismissals of Complainant's past claims involving the same matter, his argument fails to address whether his claim falls within EEOC jurisdiction. See, e.g., EEOC Appeal No. 0120141627 (Oct. 9, 2014), reconsideration denied EEOC Request No. 0520150070 (Apr. 22, 2015); EEOC Appeal No. 0120112502 (Oct. 6, 2011) reconsideration denied EEOC Request No. 0520120115 (May 9, 2012); EEOC Appeal No. 0120093810 (Jan. 22, 2010); EEOC Appeal No. 0120061259 (May 11, 2006); EEOC Appeal No. 0120152244 (Nov. 19, 2015). Thus in the instant complaint, Complainant's allegation that his Weingarten Rights were violated was properly dismissed under 29 C.F.R. § 1614.107(a)(1). CONCLUSION Accordingly, the Agency's final decision dismissing Claims 3 and 4 is AFFIRMED. Claim 1 is hereby REMANDED for further processing in accordance with the following Order. ORDER Within fifteen (15) calendar days of the date this decision becomes final, the Agency shall submit to the Administrative Judge assigned to the underlying complaint for Claim 1: (a) a copy of its December 3, 2015 Determination on the matter alleged in Claim 1; (b) copies of all documentation pertaining to the determination of Claim 1; and (c) a copy of this Decision. IMPLEMENTATION OF THE COMMISSION'S DECISION Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be submitted to the Compliance Officer, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. § 1614.503(a). The 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, the 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. 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 the 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 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. 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 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 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 June 8, 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. 2 Complainant's retaliation claim identifies Agency complaints from 1999 through present: 4B100007215, 4B100004815, 4B100001215, 4B100009214, 4B100002714, 4B100009713, 4B100002313, 4B100002212, 4B100012712, 4B100007810, 4B100003810, 4A100003309, 4B100012509, 4A100008909, 4A100003008, 4A100010107, 4A10001557, 1A073002707, 4A100020206, 4A100018105, 4A100010305, 4A100017004, and 4A100002504. 3 While not expressly stated in the Agency's Determination or final decision, we presume the "underlying complaint" references EEOC Complaint No. 520-2014-00215X, filed February 7, 2014 (pending hearing), Agency No. 4B100009713. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120161289 7 0120161289