01a03249
07-06-2000
Michael E. Farnham, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Michael E. Farnham v. United States Postal Service
01A03249
July 6, 2000
Michael E. Farnham, )
Complainant, )
)
v. ) Appeal No. 01A03249
) Agency No. 4E-800-0035-00
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
____________________________________)
DECISION
Based on a review of the record, we find that the agency properly
dismissed complainant's complaint, pursuant to EEOC Regulation 64
Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter referred
to as 29 C.F.R. � 1614.107(a)(2)), for failure to comply with the
applicable time limits.<1> Complainant alleged that he was subjected to
discrimination on the basis of physical disability (ankle injury) when
on September 29, 1999, a grievance settlement was entered into without
the complainant's endorsement and which reimbursed him for only four
of the eleven weeks his supervisor placed complainant on an emergency
placement status beginning May 25, 1999.
The agency dismissed his complaint pursuant to EEOC Regulation
1614.107(a)(2). Under this regulation, the agency shall dismiss a
complaint or a portion of a complaint that fails to comply with the
applicable time limits contained in 64 Fed. Reg. 37,644, 37,656 (1999)(to
be codified and hereinafter referred to as 29 C.F.R. � 1614.105), 64
Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter referred
to as 29 C.F.R. � 1614.106), and � 1614.204(c), unless the agency extends
the time limits in accordance with � 1614.604(c).
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) provides that an aggrieved
person must initiate contact with an EEO Counselor within 45 days of
the date of the matter alleged to be discriminatory or, in the case of
a personnel action, within forty-five (45) days of the effective date
of the action. EEOC Regulation 29 C.F.R. � 1614.105(a)(2) allows the
agency or the Commission to extend the time limit if the complainant
can establish that complainant was not aware of the time limit, that
complainant did not know and reasonably should not have known that the
discriminatory matter or personnel action occurred, that despite due
diligence complainant was prevented by circumstances beyond his or her
control from contacting the EEO Counselor within the time limit, or for
other reasons considered sufficient by the agency or Commission.
The Commission has adopted a �reasonable suspicion� standard, as opposed
to a �supportive facts� standard, to determine when the limitation period
is triggered. See Ball v. United States Postal Service, EEOC Request
No. 05880247 (July 6, 1988)(interpreting 29 C.F.R. � 1613.214(a)(1)(i)
- the predecessor of 29 C.F.R. � 1614.105(a)(1)).
The EEO counselor's report indicates that complainant contacted an EEO
counselor on October 6, 1999, regarding his claim of discrimination
which occurred on May 25, 1999, when he was suspended for eleven weeks.
To the extent complainant's claim is based on the agency's decision to
suspend him, we find that complainant failed to contact an EEO Counselor
within the forty-five (45) day time period. The Commission notes that the
use of the negotiated grievance procedure does not toll the time limit
for contacting an EEO Counselor. Schermerhorn v. United States Postal
Service, EEOC Request No. 05940729 (February 10, 1995). Accordingly,
we find that the agency properly dismissed complainant's complaint as
untimely.
To the extent complainant's claim is a claim against the grievance
procedure, we find that complainant alleges a collateral attack against
the grievance process. Therefore, we find that complainant fails to
state a claim pursuant to 64 Fed. Reg. 37,644, 37,656 (1999)(to be
codified and hereinafter referred to as EEOC Regulation 29 C.F.R. �
1614.107(a)(1)). 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 grievance process. Accordingly,
to the extent complainant alleges discrimination in the settlement of
his grievance, we find that the complaint should be dismissed pursuant
to 29 C.F.R. � 1617.107(a)(1).
Therefore, we find that the FAD properly dismissed the complaint and is
AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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:
July 6, 2000
____________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.