01994448
10-27-1999
John A. Pietrewicz, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
John A. Pietrewicz v. United States Postal Service
01994448
October 27, 1999
John A. Pietrewicz, )
Appellant, )
)
v. )
) Appeal No. 01994448
William J. Henderson, ) Agency No. 4-B-018-0026-99
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
On May 5, 1999, appellant filed a timely appeal with this Commission
from a final agency decision (FAD), received by him on April 5,
1999, dismissing two of his allegations for failure to state a claim.
The Commission accepts the appeal in accordance with EEOC Order No. 960,
as amended.
Appellant filed a formal EEO complaint on February 13, 1999, alleging that
he had been discriminated against on the bases of religion (Catholic),
national origin (part German), age (52), disability (mental), and
retaliation. The agency defined the allegations as follows:
Via correspondence dated December 12, 1998 appellant was
(a) advised he must provide medical evidence within ten days indicating
when his limitations would no longer be necessary, asked when he would
be able to fully perform the duties of his position, and (b) threatened
with removal;
Appellant's postmaster has refused to pay appellant Sick Leave for
December 1998 and January 1999;
Appellant's postmaster has kept appellant from getting Unemployment
Compensation; and,
The postmaster has allowed another employee to open union mail.
On March 19, 1999 the agency issued a FAD dismissing allegations 3
and 4 for failure to state a claim, pursuant to 29 C.F.R. �1614.107(a).
Specifically, the FAD indicated that allegation 3 was a collateral attack
on the Commonwealth of Massachusetts Unemployment Compensation/Insurance,
and did not state a separate claim of employment discrimination.
The agency found allegation 4 failed to show how a term, condition or
privilege of appellant's employment had been harmed. Allegations 1 and
2 were accepted for further investigation.
On appeal, appellant acknowledges that the state unemployment compensation
agency makes its own decisions, but contends that the agency should
have given him papers to take to the unemployment office. Further,
appellant argues that by allowing another person to open his union mail
his reputation has been damaged.
In response, the agency has provided a copy of Massachusetts Division
of Employment and Training Appeal Results, denying appellant's claim for
unemployment compensation, and a copy of the denial for further review.
Moreover, the agency states that appellant was not provided with "papers
to take to unemployment" because he was not eligible for unemployment
compensation. Regarding the opening of union mail, the agency argues
that the issue concerns his duties as a union official and not as an
employee.
EEOC Regulation 29 C.F.R. �1614.107(a) provides, in relevant part, that
an agency shall dismiss a complaint, or portion thereof, 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;
�1614.106(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).
Here, the Commission finds that appellant has failed to allege a present
harm or loss regarding a term, condition or privilege of his employment
resulted from the conduct in allegation 4. We do not find that allowing
another employee to open union mail renders appellant an "aggrieved
employee." Accordingly, the agency properly dismissed allegation 4 for
failure to state a claim.
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. USPS, EEOC Request No. 05940585 (September 22, 1994);
Lingad v. USPS, EEOC Request No. 05930106 (June 24, 1993). Appellant
contends that the postmaster prevented him from receiving unemployment
compensation, by failing to provide necessary paperwork and providing
false information. The Commission finds that allegation 3 represents a
collateral attack on the manner in which the agency presented its position
to the OWCP forum. The proper forum for appellant to have raised his
challenges was during the unemployment compensation process itself.
See Lau v. Nat'l Credit Union Administration, EEOC Reguest No. 05950037
(March 18, 1996). It is inappropriate for appellant to now attempt
to use the EEO process to collaterally attack actions which occurred
during the unemployment compensation process. Therefore, we find that
allegation 3 was properly dismissed.
The agency's decision dismissing allegations 3 and 4 pursuant to 29
C.F.R. �1614.107(a) is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 filed your appeal with the
Commission. 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. Filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1092)
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:
10/27/1999
__________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations