01993363
11-28-2000
George L. Colebrook, Jr. Complainant, v. Lawrence H. Summers, Secretary, Department of the Treasury, Agency.
George L. Colebrook, Jr. v. Department of the Treasury
01993363
November 28, 2000
.
George L. Colebrook, Jr.
Complainant,
v.
Lawrence H. Summers,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 01993363
Agency No. 99-4051
DECISION
Upon review, we find that those claims in the complaint that were
dismissed on the grounds of failure to state a claim were properly
dismissed pursuant to 29 C.F.R. �1614.107(a)(1). Complainant claimed that
he was discriminated against when the National Treasury Employees Union
Steward conspired with other union officials to have him removed from his
position of Group Manager. Complainant further claimed that four union
grievances filed against him by the union were resolved by his Branch
Chief without his input. Complainant also claimed that the Union Steward
is continuing to recruit employees within complainant's group to undermine
his authority and file frivolous grievances against him. Additionally,
complainant claimed that he learned on or about July 30, 1998, that two
years before he was under investigation by Inspection for providing
an installment agreement to a business which had black management.
Complainant claimed that these incidents constituted harassment.
The claims relating to a union conspiracy to have complainant removed
from his position and the actions taken pursuant to that conspiracy do
not represent claims against the agency but rather union officials
acting in a union capacity. We have previously found that actions
taken by union officials in their representational capacity concerning
protected matters are not actionable under EEOC Regulations. See Bray
v. Department of the Treasury, EEOC Request No. 05940748 (March 23, 1995).
Therefore, complainant is not an aggrieved employee with regard to these
claims. As for the resolution of grievances by the Branch Chief without
complainant's input and the alleged investigation of complainant, the
Commission has also held that an employee cannot use the EEO complaint
process to lodge a collateral attack on another forum's proceeding.
Kleinman v. U.S. Postal Service, EEOC Request No. 05940585 (September
22, 1994); Lingad v. U.S. Postal Service, EEOC Request No. 05930106
(June 24, 1993). In the case at hand, the proper forum for complainant
to have raised his claim of dissatisfaction with the outcome of the
grievance process was within the negotiated grievance process itself.
Accordingly, consistent with our discussion herein, the agency's decision
to dismiss these claims on the grounds of failure to state a claim was
proper and is hereby AFFIRMED.
Complainant also claimed in his complaint that he should have received
a rating of �Distinguished� on recent performance appraisals. However,
we agree with the agency that this issue was not raised during informal
EEO counseling. This issue is also not like or related to a matter
that was brought to the attention of the EEO Counselor. Therefore, we
AFFIRM the dismissal of this claim pursuant to 29 C.F.R. �1614.107(a)(2).
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
November 28, 2000
__________________
Date