John A. Pietrewicz, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionOct 27, 1999
01994448 (E.E.O.C. Oct. 27, 1999)

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