0120142170
10-29-2014
Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Western Area), Agency.
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Western Area),
Agency.
Appeal No. 0120142170
Agency No. 1F904007513
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated April 28, 2014, 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 a Mail Handler at the Agency's Network Distribution Office in Los Angeles, California.
On December 23, 2013, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race, national origin, sex, color, and age when:
1. On August 18, 2013, Complainant became aware that he should have been paid out-of-schedule pay from November 2012 through April 2013 when he worked at the Agency's Surface Transportation Center (STC), and
2. On August 18, 2013, Complainant became aware that management had not included him on a list of employees to be included in a settlement agreement with the union.
On April 28, 2014, the Agency issued a final decision. Therein, the Agency dismissed the formal complaint pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim. The Agency found that Complainant's formal complaint was challenging a matter that was part of a grievance filed by the union. The Agency determined that Complainant improperly used the EEO process to lodge a collateral attack.
On appeal, Complainant argues that the Agency's reasoning is pretext for discrimination. Complainant contends that the Agency purposefully and discriminatorily did not provide his name to the union. In response, the Agency reiterates that the formal complaint was properly dismissed for the reasons addressed in its final decision.
ANALYSIS AND FINDINGS
The regulation set forth at 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. Diaz v. Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994).
Here, Complainant alleged discrimination when he found out that he was not included as a party to a settlement agreement between the Agency and the union. Complainant vigorously argues on appeal that the matter identified in the formal complaint is not a collateral attack upon another process. However, a fair reading of the formal complaint, as reflected in documentation of record, is that the essence of the formal complaint addresses a settlement reached through the grievance process. Complainant alleged that as a result of the Agency's actions he was left out of a monetary settlement agreement initiated by the union. Such a claim, on an issue relating to union settlement agreements, is a collateral attack on a separate forum, notwithstanding Complainant's appellate argument to the contrary. Collateral attacks to other administrative proceedings fail to state a claim. See Wills v. Department of Defense, EEOC Request No. 05970596 (July 30, 1998). Complainant should raise his concerns about his purported exclusion as a party to the settlement, within the grievance process itself, and not through the EEO complaint process.
The Agency's final decision dismissing the formal complaint for failure to state a claim is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. 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 (Z0610)
If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request from the Court that the Court appoint an attorney to represent you and that the Court also permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney with the Court does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File a Civil Action").
FOR THE COMMISSION:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
October 29, 2014
__________________
Date
2
0120142170
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120142170