0120092217
06-18-2010
Davar A. Ghaffari,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southeast Area),
Agency.
Appeal No. 0120092217
Agency No. 1H-304-0006-09
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated March 26, 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., Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act
of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
In his complaint, Complainant alleged that he was subjected to
discrimination on the bases of race (Asian), national origin (Iran),
sex (male), religion (Muslim), disability (unspecified, work-related),
age (53), and in reprisal for prior protected EEO activity when:
1. On November 3, 2008, he was placed at the bottom of the roster
concerning the time in his current position; and
2. He was not sent to training like his junior co-workers.
The Agency dismissed the complaint for failure to state a claim and
for raising an unrelated matter which was not brought to the attention
of an EEO Counselor. The Agency determined that claim 1 was a direct
result of a grievance settlement and was therefore an improper attempt
to raise a collateral attack on another forum's proceedings. Further,
the agency dismissed claim 2 pursuant to 29 C.F.R. 1614.107 (a)(2) as an
unrelated claim which was not raised during the EEO counseling process.
On appeal, Complainant asserts his seniority date should be January 30,
2001, not April 29, 2008, as the agency listed on the Maintenance Clerk
Seniority List. Complainant believes that the agency listed the wrong
seniority date to excess him out of his position. Complainant requests
that we overturn the Agency's dismissal. The Agency requests that we
affirm the dismissal.
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).
We further note that 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). However,
the Commission has also held that an allegation of the discriminatory
application of the grievance process, when such process is within the
agency's control, is sufficient to state a claim if the allegation is
within the purview of the EEO regulations. See Cron v. United States
Postal Service, EEOC Request No. 05890272 (July 27, 1989); Davis v. United
States Postal Services, EEOC Request No. 05901011 (November 2, 1990).
Such an allegation alleges discrimination by the agency concerning a term,
condition or privilege of employment.
In the instant case, Complainant was placed on the Maintenance Clerk
Seniority List as a result of a grievance settlement. However,
Complainant's claim pertains to his seniority date listed on the
Maintenance Clerk Seniority List, not the grievance process or the
settlement result. Complainant's allegation that his seniority date of
April 29, 2008, versus January 30, 2001, was listed as such to excess
him out of his position and was based on race, national origin, sex,
religion, disability and age discrimination, is a separate allegation
cognizable under Title VII, the Rehabilitation Act, and the ADEA.
Consequently, the Agency improperly dismissed claim 1.
As to claim 2, the regulation set forth in 29 C.F.R � 1614.107(a)(2)
provides that an agency shall dismiss a complaint that raises a matter
that has not been brought to the attention of a Counselor and is not
like or related to a matter that has been brought to the attention of a
Counselor. We note that a review of the record reveals no evidence that
the matter in claim 2 was brought to the attention of the EEO Counselor,
nor is the matter raised in claim 2 like or related to a matter that was
raised during counseling. Therefore, we find that the Agency properly
dismissed claim 2.
Accordingly, upon review of the record and for the foregoing reasons,
the Agency's final decision is AFFIRMED in part and REVERSED in part.
Claim 1 regarding Complainant's seniority date is REMANDED for further
processing in accordance with the Order set out below.
ORDER (E0900)
The Agency is ordered to process the remanded claims in accordance with 29
C.F.R. � 1614.108. The Agency shall acknowledge to Complainant that it
has received the remanded claims within thirty (30) calendar days of the
date this decision becomes final. The Agency shall issue to Complainant
a copy of the investigative file and also shall notify Complainant of
the appropriate rights within one hundred fifty (150) calendar days of
the date this decision becomes final, unless the matter is otherwise
resolved prior to that time. If Complainant requests a final decision
without a hearing, the Agency shall issue a final decision within sixty
(60) days of receipt of Complainant's request.
A copy of the Agency's letter of acknowledgment to Complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0900)
Compliance with the Commission's corrective action is mandatory.
The Agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 77960,
Washington, D.C. 20036. The Agency's report must contain supporting
documentation, and the Agency must send a copy of all submissions to
Complainant. If the Agency does not comply with the Commission's order,
Complainant may petition the Commission for enforcement of the order.
29 C.F.R. � 1614.503(a). Complainant also has the right to file a civil
action to enforce compliance with the Commission's order prior to or
following an administrative petition for enforcement. See 29 C.F.R. ��
1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively,
Complainant has the right to file a civil action on the underlying
complaint in accordance with the paragraph below entitled "Right to
File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil
action for enforcement or a civil action on the underlying complaint is
subject to the deadline stated in 42 U.S.C. � 2000e-16(c)(Supp. V 1993).
If Complainant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
The Commission may, in its discretion, reconsider the decision in this
case if 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 (T0900)
This decision affirms the Agency's final decision in part, but it also
requires the Agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. In the alternative, you may file a civil action after
one hundred and eighty (180) calendar days of the date you filed your
complaint with the Agency, or your appeal with the Commission, until
such time as the Agency issues its final decision on your complaint.
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
June 18, 2010_______________
Date
2
0120092217
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120092217