Bruce D. Henry Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMay 26, 2000
01A01758 (E.E.O.C. May. 26, 2000)

01A01758

05-26-2000

Bruce D. Henry Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Bruce D. Henry v. United States Postal Service

01A01758

May 26, 2000

Bruce D. Henry )

Complainant, )

)

v. ) Appeal No. 01A01758

) Agency No. 4-K-220-0117-99

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

____________________________________)

DECISION

Complainant filed a timely appeal with this Commission from a final

agency decision (FAD) pertaining to 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 the Age Discrimination in

Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.<1>

We accept the appeal pursuant to 64 Fed. Reg. 37,644, 37,659 (1999)

(to be codified at 29 C.F.R. � 1614.405).

After unsuccessful EEO counseling, complainant filed a formal complaint

claiming that he was discriminated on the bases of race, sex, color,

national origin, religion, age, and reprisal when:

On June 15, 1999, several identified agency officials subjected him to

sexual harassment (homosexual) and engaged in hostile abusive conduct

toward him during a post-employment<2> union arbitration proceeding, and

The agency's EEO office refused to provided him with face-to-face

counseling regarding the instant complaint.

The agency issued a FAD dismissing both claims for failure to state a

claim. Specifically, the agency found that claim 1 was an impermissible

collateral attack on the union arbitration proceeding, and, with regard

to claim 2, that the agency had no obligation under the pertinent EEOC

regulations or the EEOC-MD 110 to provide face-to-face counseling.

On appeal, complainant argues that claim 1 should not be viewed as a

collateral attack, but as a claim of disparate treatment because the

identified agency officials were known to treat those outside of his

protected classes more favorably. Complainant also argues that this

conduct is a breach of a 1989 settlement agreement between him and the

agency wherein the agency promised to treat him fairly. Regarding claim

2, complainant argues that the EEO office overall failed to adequately

address his complaint, including the lack of face-to-face counseling.

The Commission has held 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

complainant to have raised his challenges to actions which occurred

during the arbitration proceeding was at that proceeding itself. It is

inappropriate to now attempt to use the EEO process to collaterally

attack actions which occurred during the arbitration process.

Here, we agree with the agency that claim 1 clearly constitutes a

collateral attack of the union arbitration, and that it was properly

dismissed as such. As to complainant's breach claim, we find that he has

not demonstrated that the referenced settlement agreement was intended to

include post-employment union proceedings, and find that it is more likely

to have been applicable only to agency actions during his employment

with the agency. Accordingly, we AFFIRM the FAD's DISMISSAL of claim 1.

Regarding claim 2, we find that it is in the nature of a "spin-off

complaint" because it concerns alleged inadequate EEO processing.

When claims of improper processing are raised, the Commission has held

that the complainant should be referred to the agency official responsible

for the quality of complaint processing, and the agency should earnestly

attempt to resolve any dissatisfaction with the complaint process as

early and expeditiously as possible. EEOC-MD 110 (5-25), as revised,

November 9, 1999. Complainant is therefore advised to contact an

official in the agency's EEO office if he believes that his complaint

has been improperly processed. See James v. Department of the Navy,

EEOC Appeal No. 01991964 (January 19, 2000). Accordingly, we AFFIRM

the FAD's DISMISSAL of claim 2.

In conclusion, we find that the agency's DISMISSAL of the instant

complaint was proper, and we AFFIRM the FAD.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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 64

Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred

to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter

referred to as 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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)

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:

May 26, 2000

____________________________

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

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 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the

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

Commission's website at www.eeoc.gov.

2The record shows that complainant's employment with the agency terminated

on April 22, 1996.