EEOC Appeal 2020001739

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Elenor S., 1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Western Area),
Agency.
Appeal No. 2020001739
Agency No. 1E-842-0004-19
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC
or Commission) from the Agency's final decision dated January 6, 2020, dismissing a formal
complaint of unlawful employment discrimination in violation of Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq., and Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq.
BACKGROUND
During the period at issue, Complainant worked for the Agency as a Data Conversion Operator in
Salt Lake City, Utah.
On November 12, 2019, Complainant filed a formal complaint alleging that the Agency subjected
her to discrimination based on disability, age, and in reprisal for prior protected EEO activity. In
its final decision, dated Janaury 6, 2020, the Agency determined that the formal complaint was
comprised of the following claim:
On June 24, 2019, and other dates, prior, [Complainant’s] requests for reassignment
were denied due to prior discipline issued to [her] for [her] attendance.
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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The Agency dismissed the formal complaint for untimely EEO Counselor contact. The Agency
reasoned that June 24, 2019 was the last time a reassignment was denied, and that Complainant
initiated EEO contact on September 5, 2019, outside of the applicable time period. The Agency
further found that to the extent Complainant was alleging that past discipline she received was due
to discrimination, the Agency found that her last discipline was issued in September 2018, and
Complainant’s September 2019 EEO contact is outside the applicable time period. 	Finally, the
Agency found that to the extent Complainant may be alleging that the Agency failed to comply
with grievance settlements, these matters are a collateral attack on the grievance process.
The instant appeal followed.
ANALYSIS AND FINDINGS
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 he was not notified of the time limits and was not otherwise aware of
them, that he did not know and reasonably should not have known that the discriminatory matter
or personnel action occurred, that despite due diligence he was prevented by circumstances beyond
his control from contacting the Counselor within the time limits, or for other reasons considered
sufficient by the agency or the Commission.
To the extent Complainant is alleging that the Agency’s June 24, 2019 denial of a reassignment
(or other denial of reassignments that occurred prior to June 2019) was due to unlawful
discrimination, the Agency properly dismissed these matters for untimely EEO Counselor contact.
The record contains a copy of the EEO Counselor’s Report. 	The EEO Counselor’s Report
references a June 24, 2019 denial of a transfer. 	In addition, the record contains a letter to
Complainant dated June 24, 2019 denying her request for a reassignment. 	Complainant’s
September 5, 2019 EEO contact occurred outside the applicable time period and she has not
provided sufficient justification for extending the applicable time period.
We further concur with the Agency that to the extent Complainant is alleging that past discipline
she received was due to discrimination, these matters are also properly dismissed for untimely
EEO Counselor contact. In her formal complaint, Complainant states that management refuses to
remove discipline that should never have been received in the first place. 	The most recent
discipline in the record for Complainant is a Notice of Removal dated December 13, 2018.

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The record is devoid of evidence that Complainant received any discipline within the 45 days
preceding her September 5, 2019 EEO contact.
Finally, we find that to the extent that Complainant is alleging that the Agency failed to properly
process her grievances or did not implement a grievance settlement agreement, the Agency
properly dismissed these matters for alleging a collateral attack on the grievance process. 2 	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 grievance process
is within that proceeding itself. 	It is inappropriate to now attempt to use the EEO process to
collaterally attack actions which occurred during the grievance process.
Accordingly, we AFFIRM the Agency’s final decision dismissing Complainant’s complaint.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. 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.
2 Complainant, on appeal, submits copies of grievances and grievance settlement agreements.

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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 (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
September 2, 2020
Date