01a54266
09-22-2005
Clovis Camargo v. United States Postal Service
01A54266
September 22, 2005
.
Clovis Camargo,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(New York Metro Area)
Agency.
Appeal No. 01A54266
Agency No. 4A-070-0074-05
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated April 27, 2005, dismissing his complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. In his
complaint, complainant alleged that he was subjected to discrimination in
reprisal for prior EEO activity in that a signed grievance settlement
agreement dated July 13, 2004, has not been processed for payment.
The agency dismissed his complaint for failure to state a claim, pursuant
to 29 C.F.R. � 1614.107(a)(1) and for untimely EEO Counselor contact,
pursuant to 29 C.F.R. � 1614.102(a)(2).
The record indicates that complainant received a Notice of Removal
dated November 12, 2003, for violence in the workplace, and was placed
on emergency suspension. Complainant filed a claim with the Office of
Workers' Compensation Programs (OWCP) that was accepted on January 23,
2004. He stated that he was out of work for 6 months on compensation.
On July 13, 2004, complainant met with his union representative and
Labor Relations at a settlement meeting and signed off on a settlement
agreement. Upon returning to work on October 4, 2004, complainant stated
that he has tried everything from letters and phone calls to get his
settlement agreement honored, but it has not been implemented.
Regarding the agency's dismissal for failure to state a claim,
the regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in
relevant part, that an agency shall dismiss a complaint that fails to
state a claim. 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, .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 instant case, the agency
explained that it has no authority or jurisdiction to enforce settlements
executed outside the EEO process. Essentially, the agency found that
complainant lodged a collateral attack on a grievance settlement agreement
and failed to establish that he was an �aggrieved employee.�
The Commission finds that the complaint is outside the purview of
the EEO process and that the agency properly dismissed this matter
for failure to state a claim. The grievance settlement agreement is
not an agreement generated through the EEO administrative process.
We find that complainant is improperly attempting to use the EEO
process to collaterally attack the outcome of the non-EEO process.
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). The proper forum for complainant to have raised
his dissatisfaction with the processing of his settlement agreement is
within that process in which he settled the matter. Given that this
complaint is properly dismissed for failure to state a claim, we will
not address the agency's other ground for dismissal.
Accordingly, the agency's final decision dismissing complainant's
complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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
September 22, 2005
__________________
Date