Ascencion Garcia, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionNov 30, 2000
01992815 (E.E.O.C. Nov. 30, 2000)

01992815

11-30-2000

Ascencion Garcia, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Ascencion Garcia v. United States Postal Service

01992815

November 30, 2000

.

Ascencion Garcia,

Complainant,

v.

William J. Henderson,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01992815

Agency No. 4-G-780-0077-99

DECISION

Upon review, the Commission finds that complainant's complaint was

properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1) for failure

to state a claim.<1> In a complaint dated December 4, 1998, complainant

claimed he was discriminated against on the bases of his national origin

(Hispanic) and in reprisal for prior EEO activity, when on September 21,

1998, complainant's manager signed a Step 2 grievance decision to pay

complainant 3 hours of overtime, and complainant has yet to be paid.

It has been well settled that an employee cannot use the EEO complaint

process to lodge a collateral attack on another proceeding. See Wills

v. Department of Defense , EEOC Request No. 05970596 (July 30, 1998);

Kleinman v. United States Postal Service, EEOC Request No. 05940585

(September 22, 1994); Lingad v. United States Postal Service, EEOC

Request No. 05930106 (June 25, 1993). The proper forum for an employee to

challenge his or her grievance proceeding is at that proceeding itself.

It is inappropriate to attempt to use the EEO process to collaterally

attack actions which occurred during, or as a result of the grievance

process.

In this case, complainant filed an EEO complaint concerning the agency's

alleged failure to compensate him pursuant to a grievance decision.

Therefore, we find that the instant complaint represents a collateral

attack on the grievance process and thus, fails to state a claim.

Accordingly, the agency's decision dismissing complainant's complaint

was proper and is AFFIRMED.<2>

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0900)

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), 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 19848,

Washington, D.C. 20036. 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 (S0900)

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 (Z1199)

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:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

November 30, 2000

__________________

Date

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

__________________

Date

______________________________

1On November 9, 1999, revised regulations governing the EEOC's federal

sector complaint process went into effect. These regulations apply

to all federal sector EEO complaints pending at any stage in the

administrative process. Consequently, the Commission will apply

the revised regulations found at 29 C.F.R. Part 1614 in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.

2Because the Commission has affirmed the agency's decision on the ground

of failure to state a claim, the Commission will not address the agency's

alternative ground for dismissal herein.