U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Dollie T.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 0120171110 Agency No. 1G-322-0039-16 DECISION Complainant filed a timely appeal with this Commission from the Agency's final decision dated December 22, 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND During the period at issue, Complainant worked as a Clerk for the Agency in Jacksonville, Florida. On November 18, 2016, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of race (African-American), sex (female), age (48 years old at the time of the alleged incidents), and in reprisal for prior protected EEO activity. In its final decision, dated December 22, 2016, the Agency determined that Complainant's complaint was comprised of the following claims: 1. On December 2, 2015, [Complainant was] placed on Emergency Placement after an incident with a male employee; 2. On December 22, 2015, [Complainant was] issued a Notice of Removal effective January 5, 2016, and on July 27, 2016, an arbitrator upheld the Emergency Placement and Notice of Removal.2 The Agency dismissed Complainant's complaint on the grounds of untimely EEO Counselor contact. The Agency reasoned that Complainant initiated EEO contact on August 17, 2016, outside of the applicable time period for both personnel actions at issue. The Agency noted that to the extent Complainant was challenging the arbitrator's decision, this claim is properly dismissed for failure to state a claim reasoning that this is a collateral attack on the grievance process. The instant appeal followed. On appeal, Complainant asserts, through her attorney, that she was awaiting the outcome of the arbitration process. In response, the Agency requests that we affirm its final decision dismissing Complainant's complaint. ANALYSIS AND FINDINGS We find that the Agency properly dismissed Complainant's complaint for untimely EEO Counselor contact. EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of discrimination should be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five (45) days of the effective date of the action. The Commission has adopted a "reasonable suspicion" standard (as opposed to a "supportive facts" standard) to determine when the forty-five (45) day limitation period is triggered. See Howard v. Dep't of the Navy, EEOC Request No. 05970852 (Feb. 11, 1999). Thus, the time limitation is not triggered until a complainant reasonably suspects discrimination, but before all the facts that support a charge of discrimination have become apparent. EEOC Regulations provide that the agency or the Commission shall extend the time limits when the individual shows that she was not notified of the time limits and was not otherwise aware of them, that she did not know and reasonably should not have known that the discriminatory matter or personnel action occurred, that despite due diligence she was prevented by circumstances beyond her control from contacting the Counselor within the time limits, or for other reasons considered sufficient by the agency or the Commission. The record reflects that Complainant initiated EEO contact on August 17, 2016, outside of the applicable time periods for both actions. While Complainant asserts that the time limit should be tolled because she was awaiting the outcome of the arbitration decision, we disagree. The record contains an affidavit from an Agency official indicating that EEO posters, with the applicable time limit, were on display at Complainant's facility during the time period in question. In addition, the Commission has consistently held that use of internal agency procedures, union grievances, and other remedial processes do not toll the time limit for contacting an EEO Counselor. Huynh v. U.S. Postal Serv., EEOC Appeal No. 0120103523 (Feb. 4, 2011) (affirming agency's dismissal for untimely EEO Counselor contact with respect to complainant's removal and reasoning that complainant had 45 days from the effective date on the Notice of Removal to initiate EEO contact and not 45 days from the date of the arbitration decision). We further concur with the Agency that to the extent Complainant was alleging dissatisfaction with the arbitrator's decision, this claim is properly dismissed for failure to state a claim because it is a collateral attack on the grievance process. 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). The proper forum for Complainant to have raised her challenges to actions which occurred during the arbitration proceeding was at that proceeding itself. It is inappropriate to now attempt to use the EEO process to collaterally attack actions which occurred during the arbitration process. Accordingly, we AFFIRM the Agency's final decision dismissing Complainant's complaint. 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 May 9, 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 We note that the record does not contain a copy of the Notice of Removal (Notice). However, on appeal, Complainant does not contest the effective date listed in the Notice, January 5, 2016. In addition, the Arbitrator, in his decision, references the date January 5, 2016, with respect to the Notice. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120171110 4 0120171110