Bruce Z. Miller, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionDec 27, 2000
01993832 (E.E.O.C. Dec. 27, 2000)

01993832

12-27-2000

Bruce Z. Miller, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Bruce Z. Miller v. United States Postal Service

01993832

December 27, 2000

.

Bruce Z. Miller,

Complainant,

v.

William J. Henderson,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01993832

Agency No. 1-H-304-0013-99

DECISION

Upon review, the Commission finds that the complaint was properly

dismissed pursuant to 29 C.F.R. � 1614.107(a)(1).<1>

The EEO Counselor's Report shows that complainant claimed that he had been

discriminated against on the basis of reprisal when on October 21, 1998,

he was not allowed time to represent, process, and adjust grievances.

Subsequently, complainant filed a formal complaint claiming that he had

been discriminated against on the basis of reprisal when he was denied

time to investigate, process, and write up grievances.

The agency issued a final decision dismissing the complaint for failure to

state a claim under EEOC Regulations, because it constituted a collateral

attack on the grievance process. We find that the agency's dismissal

was correct. EEOC Regulation 29 C.F.R. �1614.107(a)(1) 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). In the present case,

complainant is challenging the denial of time to represent, investigate,

and process grievances filed by others. We find that this complaint

presents issues which are within the forum of the grievance procedure

and cannot be remedied through the EEO process. Since the issue raised

is not within the purview of the EEO Regulations, the agency's final

decision dismissing the complaint is AFFIRMED.

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

December 27, 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.