U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Johnathon M.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Great Lakes Area), Agency. Appeal No. 0120170300 Agency No. 1J-536-0002-16 DECISION Complainant filed a timely appeal with this Commission from the Agency's final decision dated August 27, 2016, 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 an Operator, Linear Integrated Parcel Sorter/Automated Parcel and Bundle Sorter at the Agency's Processing and Distribution Facility in Oskosh, Wisconsin. On August 26, 2016, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race, sex, disability, and in reprisal for prior protected activity when: 1. On or around March 22, 2016, Complainant accepted a pre-arbitration offer concerning his Removal, and was later informed that the offer was no longer valid; 2. On or around April 13, 2016, Complainant became aware of a similarly situated comparator that only received a Letter of Warning, instead of a Removal. In the instant final decision, the Agency dismissed both claims on two grounds. First, the Agency found both of the above-mentioned claims concerned the same matters raised in a prior complaint. Second, the Agency found that the claims failed to state a claim, and constituted an impermissible collateral attack on pre-arbitration settlement negotiations, a forum that is beyond EEOC jurisdiction. On appeal, Complainant contends that he has presented "separate and unrelated" issues. Furthermore, Complainant alleged that representatives of the Agency and the American Postal Workers Union had colluded against him to undermine his position during pre-arbitration negotiations. According to Complainant, his current allegations are not collateral attacks, but show the Agency's "repeated" discrimination that culminated in his removal. ANALYSIS AND FINDINGS Upon review, we find that the Agency properly dismissed Complainant's complaint pursuant to 29 C.F.R. §1614.107(a)(1) for failure to state a claim. Complainant fails to state a claim because he has failed to show that a harm or loss for which there is a remedy under the EEOC regulations. See Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994). With respect to Complainant's challenge to the Agency's conduct during pre-arbitration proceedings, such a challenge constitutes an inappropriate attempt to use the EEO process to collaterally attack Agency actions during the arbitration process. This finding is consistent with our holdings in on similar appeals. See Wills v. Dep't of Defense, EEOC Request No. 05970596 (Jul. 30, 1998); Kleinman v. U.S. Postal Svc., EEOC Request No. 05940585 (Sep. 22, 1994); Lingad v. U.S. Postal Svc., EEOC Request No. 05930106 (Jun. 25, 1993). Moreover, the discovery of a new comparator does not give rise to a new complaint. Here, the issue of Complainant's actual removal from Agency employment is pending on appeal before the Commission, in a separate complaint.2 Accordingly, the Agency's final decision dismissing the formal complaint for the reasons addressed herein is AFFIRMED. Because we affirm the Agency's dismissal for failure to state a claim, we will not address alternative dismissal grounds. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0416) 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 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 January 11, 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 The appeal of a finding of no discrimination, on a separate complaint regarding the removal from Agency employment, is pending before the Commission under Appeal No. 0120162490. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120170300 4 0120170300