01982920_r
03-16-1999
Robert E. Feinzig, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Robert E. Feinzig, )
Appellant, )
)
v. ) Appeal No. 01982920
) Agency No. 1A111004798
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
Appellant filed an appeal with this Commission from a final agency
decision (FAD) concerning his complaint of unlawful employment
discrimination in violation of Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. �2000e et seq., and Rehabilitation Act of 1973,
as amended, 29 U.S.C. �791 et seq. The final agency decision was dated
February 25, 1998. The appeal was postmarked March 9, 1998. Accordingly,
the appeal is timely (see, 29 C.F.R. �1614.402(a)), and is accepted in
accordance with EEOC Order No. 960, as amended.
The record indicates that on December 19, 1997, appellant initiated
contact with an EEO Counselor regarding his complaint. Informal efforts
to resolve his concerns were unsuccessful. On February 9, 1998,
appellant filed a formal complaint, alleging that he was the victim
of unlawful employment discrimination on the bases of color (white),
religion (Jewish), sex (male), disability (knee), and in reprisal for
prior EEO activity when:
On March 26, 1997, appellant was issued a Notice of Removal for conduct
unbecoming a Postal employee/harassing a Postal employee; and
On November 4, 1997, an arbitrator upheld the removal.
On February 25, 1998, the agency issued a final decision
dismissing allegation (1) for untimely EEO contact, pursuant to 29
C.F.R. �1614.107(b), and allegation (2) failure to state a claim,
pursuant to 29 C.F.R. �1614.107(a). Specifically, the agency found that
appellant failed to initiate contact with an EEO counselor within 45 days
of the date he received the Notice of Removal raised in allegation (1)
and allegation (2) was a collateral attack on a grievance decision and,
therefore, failed to state a processable claim.
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.
In the present case, we find that appellant failed to initiate contact
with an EEO Counselor in a timely manner with regard to allegation (1).
Appellant received the Notice of Removal on March 26, 1997, however,
he failed to initiate EEO contact until December 19, 1997, more than 45
days later. Appellant failed to proffer adequate justification to warrant
an extension of the applicable time limit. Accordingly we find that the
agency's dismissal of allegation (1) was proper and it is hereby AFFIRMED.
EEOC Regulation 29 C.F.R. �1614.107(a) provides that an agency may dismiss
a complaint which fails to state a claim pursuant to 29 C.F.R. �1614.103
or �1614.106(a). 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;
�1614.106(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).
The Commission has also held that an employee cannot use the EEO
complaint process to lodge a collateral attack on another forum's
proceeding. Kleinman v. U.S. Postal Service, EEOC Request No. 05940585
(September 22, 1994); Lingad v. U.S. Postal Service, EEOC Request
No. 05930106 (June 24, 1993). In the case at hand, the proper forum
for appellant to have raised his allegation of dissatisfaction with the
outcome of the grievance process was within the negotiated grievance
process itself. Since the allegation is a collateral attack on the
outcome of another administrative dispute resolution process, the
allegation fails to state a claim. It is inappropriate for appellant
to attempt now to use the EEO process to collaterally attack actions
which occurred during the grievance process. Accordingly, consistent
with our discussion herein, the agency's decision to dismiss allegation
(2) is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and be submitted to the Director, Office of
Federal Operations, Equal Employment Opportunity Commission, P.O. Box
19848, Washington, D.C. 20036. In the absence of a legible postmark,
the request to reconsider shall be deemed filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. In the alternative, you may file a
civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. Filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1092)
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 that the Court appoint
an attorney to represent you and that the Court 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 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:
March 16, 1999
____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations