0120100214
05-06-2011
Harlan F. Henry, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Western Area), Agency.
Harlan F. Henry,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Western Area),
Agency.
Appeal No. 0120100214
Agency No. 1E971004209
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated September 21, 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. 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Clerk at the Agency's Portland GMF facility in Portland, Oregon.
On August 17, 2009, Complainant filed a formal complaint alleging
that the Agency subjected him to discrimination on the bases of race
(African-American), sex (male), color (Black), disability (back/knee),
age (47), and reprisal for prior protected EEO activity under Title VII
of the Civil Rights Act of 1964 when on June 30, 2009 he was forced to
sign an allegedly illegal grievance settlement.
Briefly, Complainant was terminated for failing to pass a scheme and
filed a grievance on the matter. At step 2, the parties entered into
a settlement wherein the removal was rescinded and Complainant would
remain in his current assignment until he accepted and qualified on
the residual Mail Processing Clerk job at PACC. The agreement also had
a provision that Complainant "agrees to withdraw any and all complaints
pertaining to this issue in this or any other forum, including EEO." Thus,
the Agency dismissed the EEO complaint which was then pending.
Complainant also asserted that the Agency did not follow the union
contract. Complainant says he was forced to sign the agreement as a
condition of his re-employment. Information in the EEO Dispute Resolution
Specialist's report indicates the previous complaint dealt with being
denied additional time to train for the scheme and being denied an
extension on training hours, all matters dealing with the scheme.
Complainant also stated that he was denied reasonable accommodation.
The Agency dismissed the complaint as being a collateral attack on the
grievance process. The instant appeal followed
ANALYSIS AND FINDINGS
The Commission has held that an employee cannot use the EEO complaint
process to lodge a collateral attack on another proceeding. See Wills
v. Dep't of Def., EEOC Request No. 05970596 (July 30, 1998); Kleinman
v. U.S. Postal Serv., EEOC Request No. 05940585 (Sept. 22, 1994);
Lingad v. U.S. Postal Serv., EEOC Request No. 05930106 (June 25, 1993).
The proper forum for Complainant to have raised his challenges to actions
which occurred during the grievance process is within that process itself.
It is inappropriate to now attempt to use the EEO process to collaterally
attack actions which occurred during the grievance process. To the extent
Complainant is unhappy with the settlement agreement, the Commission has
no jurisdiction over its terms. Further, merely because Complainant was
given a choice between re-employment or being terminated does not make
the agreement illegal.
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. Dep't of the Air Force, EEOC
Request No. 05931049 (April 21, 1994).
Accordingly, the Agency's final decision dismissing Complainant's
complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 (S0610)
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 (Z0610)
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
May 6, 2011
__________________
Date
2
0120100214
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120100214