0120092328
08-19-2009
Curtis A. Phelps, Complainant, v. Paul F. Prouty, Acting Administrator, General Services Administration, Agency.
Curtis A. Phelps,
Complainant,
v.
Paul F. Prouty,
Acting Administrator,
General Services Administration,
Agency.
Appeal No. 0120092328
Agency No. 09R9GMSF05
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated April 6, 2009, 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. and
the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29
U.S.C. � 621 et seq. 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.
In a complaint dated March 5, 2009, complainant alleged that he was
subjected to discrimination on the bases of race (African-American),
age (64), and reprisal for prior protected EEO activity under Title
VII of the Civil Rights Act of 1964 when the agency did not publish
the 2008 Combined Federal Campaign (CFC) endorsement letter signed by
complainant as Regional Vice President of the American Federation of
Government Employees (AFGE); while readily accepting and publishing
without limitations or restrictions the very same endorsement letter
signed by white agency executives and others including President Bush.
Although the agency framed the matter slightly differently, the basic
contention was that the agency did not approve the sending of a 2008
CFC endorsement letter under complainant's signature as Vice President
of the union. It should be noted that complainant was not a volunteer
or appointee for CFC. Complainant also made allegations of harassment
related to his union position and of "union animus." Complainant did not
raise any new arguments in his appeal. Rather, he questions the manner
in which the agency framed the issues.
To the extent that complainant is alleging that the matters herein
were taken related to his position with the union or involved union
animus, 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 involve
his position within the union or union animus is within the negotiated
procedures. It is inappropriate to use the EEO process to collaterally
attack actions which are best addressed within the negotiated process.
To the extent that complainant alleges the actions were taken based
on race, age, and reprisal, the Commission finds that the complaint
fails to state a claim under the EEOC regulations because complainant
failed to show that he suffered harm or loss with respect to a term,
condition, or privilege of employment for which there is a remedy.
See Diaz v. Department of the Air Force, EEOC Request No. 05931049
(April 21, 1994). Complainant was not a volunteer or appointee for the
CFC. Further, complainant has not raised a viable claim of reprisal.
Accordingly, the agency's final decision dismissing complainant's
complaint is affirmed. Because we find that the matters herein do not
state a claim, we need not address the timeliness of complainant's EEO
counselor contact.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 77960,
Washington, DC 20013. 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 (S0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
August 19, 2009
__________________
Date
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0120092328
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
3
0120092328