0120170928
04-18-2017
Harlan P,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Great Lakes Area), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Harlan P,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.
Appeal No. 0120170928
Agency No. 1J607007616
DECISION
Complainant timely appealed to this Commission from the Agency's December 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., Section 501 of the Rehabilitation Act of 1973 ("Rehabilitation Act"), as amended, 29 U.S.C. � 791 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 worked as a Labor Custodian (PS-04) at the Agency's Cardiss Collins Facility in Chicago, Illinois.
On November 12, 2016, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of disability (disabled veteran with a service-connected disability rating of 40%), age (59), and reprisal for prior protected EEO activity (Agency No. 1J607000209) when:
On or around April 15, 2015 and ongoing, his requests for a "structured interview" per a class action grievance settlement have been ignored.
The above-referenced settlement agreement ("the Agreement") was the result of a 2009 action brought by the Union challenging the Agency's implementation of the Maintenance Selection System ("MSS") qualification standards when scoring the 955 Exam. Complainant, as an Agency maintenance employees, had to pass the 955 Exam in order to be eligible certain maintenance positions or promotions. The 955 Exam included three scored sections and an overall determination of "ineligible" or "eligible." The grievance arose because the Agency would change the eligibility ratings of employees who passed the exam from "eligible" to "ineligible," based on metrics that were not provided to or approved by the Union. As a result, those employees were not placed on promotion eligibility registers ("PERs"). The matter escalated to National Level Arbitration, and on April 16, 2014, the Arbitrator found that the Agency's actions constituted a "unilateral change", in violation of the Collective Bargaining Agreement it entered into with the Union and ordered the parties to determine a remedy.
On March 30, 2015, Complainant was notified by letter that he was among the 671 employees identified as having been impacted by the Agency's unilateral, impermissible changes to ratings. Per the agreement reached by the parties, Complainant was entitled to a lump sum payment of $2,950.00, removal of the "ineligible" rating from his record, and to complete the remaining steps of the MSS process, including a "structured interview." Once the process was complete, Complainant's name would be placed on the PER list. Upon receipt of the notice, Complainant requested an interview without success. Complainant tried again on multiple occasions and was "ignored." Complainant disputes the Maintenance MSS Coordinator's ("M1") explanation that the delay was due to scheduling difficulties, as Complainant was one of "many" in his location who were entitled to entitled to a structured interview in order to be placed on the PER. Instead, Complainant argues that the Agency is discriminating against him by only scheduling younger employees for structured interviews.
On October 19, 2016, while pursuing the instant complaint, Complainant obtained a copy of his original 955 Exam Scores from July 2009 for the first time. When he took the exam, M1 allegedly told Complainant that he had not passed and was "ineligible" for placement on the PER. Despite his efforts over the years, Complainant had not been able to obtain a promotion. The July 2009 results reflected the grievance allegation, showing that Complainant had passed each part of the exam yet was still labeled "ineligible." Complainant alleges that the Agency's actions toward him specifically were motivated by discrimination and retaliation; and that he could have been promoted if the Agency had not improperly changed his eligibility rating. Instead, younger employees with less seniority are selected for promotions that he could not even interview for due to the "ineligible" rating.
The Agency dismissed Complainant's complaint pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim, citing improper jurisdiction; and alternately, for untimely contact with an EEO Counselor as required under 29 C.F.R. � 1614.107(a)(2) and �1614.105(a)(1).
ANALYSIS AND FINDINGS
In relevant part, 29 C.F.R. � 1614.107(a)(1) provides 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 (Apr. 21, 1994).
The Commission has consistently held that an employee cannot use the EEO complaint process to lodge a collateral attack on another forum's proceeding, and "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 (Jun. 23, 1994) (finding a challenge to evidentiary ruling in grievance process fails to state a claim as an EEO complaint). We have long held that raising a collateral attack in an EEO complaint on an adjudicatory decision made in another administrative proceeding fails to state a claim. Complainant should raise his concerns in the grievance process itself, and not through the EEO process. See Wills v. Dep't of Defense, EEOC Request No. 05970596 (Jul. 30, 1998).
Here, the record reflects that Complainant is raising a claim directly related to the Agency's compliance with a grievance decision. An employee may not use the EEO process to obtain compliance with a grievance settlement. See Complainant v. Dep't of Homeland Sec., EEOC Appeal No. 0120142347 (Nov. 5, 2014). Such a complaint is outside the purview of the EEO process, and will be dismissed for failure to state a claim pursuant to 29 C.F.R. � 1614.107(a)(1). See Perkins v. United States Postal Serv., EEOC Appeal No. 01A50151 (Apr. 13, 2005); Sorrell v. United States Postal Serv., EEOC Appeal No. 01A45910 (Dec. 22, 2004), request for reconsideration denied, EEOC Request No. 05A50481 (Mar. 30, 2005). The EEOC's jurisdiction over settlement breach claims is limited to agreements reached during "any stage of the [administrative EEO] complaint process." 29 C.F.R. � 1614.504(a).
Although Complainant attributes a discriminatory motive to the Agency's failure to schedule a structured interview for him, we find that he is essentially asking this Commission enforce a settlement agreement arrived at through the grievance process, and is outside our jurisdiction. Likewise, we cannot address Complainant's allegation that the Agency is selectively implementing the Agreement in a manner favoring younger employees because it also speaks to enforcement. To the extent that Complainant is alleging that the "ineligible" rating he received in 2009 was the result of retaliation, we find this matter, as the subject of the grievance, is inextricably intertwined with the processing and administration of the grievance, and is therefore an attempt to lodge a collateral attack on the grievance process. See Shibel v. Dep't of the Navy, EEOC Appeal No. 01987064 (Aug. 12, 1999).
As Complainant fails to state a claim, we decline to examine the Agency's alternate grounds for dismissal under 29 C.F.R. � 1614.107(a)(2) and �1614.105(a)(1).
CONCLUSION
Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED.
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
April 18, 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.
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