01a62098
06-13-2006
Glen D. Thompson, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Glen D. Thompson,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A62098
Agency No. 4K-200-0037-06
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated January 11, 2006, 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
on the bases of race (African-American) and reprisal for prior protected
EEO activity when: (1) during his tenure with the agency, management used
racially charged rhetoric against him;1 and (2) he did not receive the
pay adjustment as agreed in the June 30, 2005 grievance resolution.
The agency dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a)(1).
In its dismissal, the agency indicated that complainant alleged claim (2)
and did not address claim (1). As to claim (2), the agency asserted that
the complaint alleged dissatisfaction with the outcome of the grievance
resolution. Therefore, the agency asserted that complainant failed to
state a claim. In addition, the agency dismissed the matter pursuant
to 29 C.F.R. � 1614.107(a)(2) for failure to contact an EEO Counselor in
a timely manner. The agency indicated that complainant did not receive
the payment in July 2005 per the agreement but did not contact the EEO
Counselor until November 28, 2005.
Complainant appealed asserting that the complaint at hand is based
on his manager's efforts to thwart a settlement that was made eight
months ago. Further, complainant claims that the manager's noncompliance
is symptomatic of the overall issue at hand. Therefore, complainant
requests that the Commission reverse the agency's dismissal. The agency,
in response, argued that complainant's continued claims regarding
the settlement agreement are being focused in the wrong forum since
the settlement was reached during the grievance process. As such, the
agency requests that the Commission affirm its dismissal for complainant's
complaint constitutes a collateral attack on the grievance process.
Upon review, we find that the agency erred when it failed to acknowledge
claim (1). However, since the agency dismissed the complaint as a whole,
in essence claim (1) was dismissed as well. Therefore, we reviewed the
file to determine whether the dismissal of the complaint as a whole was
appropriate or not.
Claim (1)
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides that
the agency shall dismiss a complaint that states the same claim that
is pending before or has been decided by the agency or Commission.
It has long been established that "identical" does not mean "similar."
The Commission has consistently held that in order for a complaint to be
dismissed as identical, the elements of the complaint must be identical
to the elements of the prior complaint in time, place, incident, and
parties. See Jackson v. Department of the Air Force, EEOC Appeal No
01955890 (April 5, 1996) rev'd on other grounds EEOC Request No. 05960524
(April 24, 1997). The record included a copy of the agency's dismissal
of complainant's complaint designated Agency No. 4K-200-0051-05.2 A
review of the dismissal indicated that complainant alleged a claim
of harassment. In support of his claim, he presented several events
which were to demonstrate the hostile work environment to which he
was subjected. Among the alleged incidents were: the use of the term
"nigger" and statements such as "If you were black, you would help me
out" and "write another letter and see what happens." Upon review,
we find that complainant's prior EEO complaint stated the same claim as
the one being alleged in claim (1). Therefore, we find that claim (1)
should be dismissed pursuant to 29 C.F.R. � 1614.107(a)(1).
Claim (2)
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).
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 occurred during the
arbitration proceeding was at that proceeding itself. It is inappropriate
to now attempt to use the EEO process to collaterally attack actions
which occurred during the arbitration process. Upon review, we find
that complainant's claim (2) is a collateral attack on the settlement
reached pursuant to the settlement agreement. Therefore, we find that
the complaint is properly dismissed for failure to state a claim.
Accordingly, we conclude that the agency's dismissal of the complaint
was appropriate. As such, the Commission affirms the agency's final
decision.
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
June 13, 2006
__________________
Date
1 Complainant indicated that the following comments or words were uttered
by various management officials: "If you were black, you would help me
out;" "nigger;" and "write another letter and see what happens."
2 The record indicated that prior complaint was dismissed by the agency
on March 5, 2005, however complainant failed to appeal that dismissal
to the Commission.
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01A62098
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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01A62098