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.