0120152165
01-12-2016
Noah S.,1 Complainant, v. Daniel M. Tangherlini, Administrator, General Services Administration, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Noah S.,1
Complainant,
v.
Daniel M. Tangherlini,
Administrator,
General Services Administration,
Agency.
Appeal No. 0120152165
Agency No. GSA-15-CO-C-0060
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated May 8, 2015, 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
During the period at issue, Complainant was employed as a Contract Specialist at the Agency's Acquisition Services in New York, New York. Complainant also served as a union official.
On April 16, 2015, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency subjected him to discrimination on the bases of age and in reprisal for prior EEO activity when:
1. on or about March 11, 2015, he became aware that management made derogatory remarks about him; and
2. on or about March 26, 2015, he received a threatening email informing him that his March 18, 2015 email was "illegal" and that "discipline was forthcoming."
In its May 8, 2015, the Agency dismissed Complainant's complaint pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim. The Agency found that Complainant failed to demonstrate that he was harmed with respect to the terms and conditions of his employment by the Agency action. Rather, the Agency asserts that the alleged discrimination occurred outside the context of Complainant's employment and concerned internal matters of the union.
The instant appeal followed.
ANALYSIS AND FINDINGS
Under the regulations set forth at 29 C.F.R. Part 1614, an agency shall accept a complaint from an 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). If complainant cannot establish that s/he is aggrieved, the agency shall dismiss a complaint for failure to state a claim. 29 C.F.R. � 1614.107(a)(1).
A fair reading of the complaint and Complainant's statement on appeal supports the Agency's contention that Complainant's allegations concern events that occurred solely within internal proceeds of the union and not within the context of Complainant's role as an employee of the Agency. Complainant alleged that an Agency manager's August 19, 2014 email to him concerning his improper actions as a union officer in using official time to represent another employee in an EEO matter was based on reprisal for his prior protected activity. Complainant also referred to the Agency's renovation of an Agency building in Puerto Rico and the subsequent allocation of employee work space, and asserts there was improper activity between Agency managers and the union officers in regard to that matter.
Further, Complainant argued that March 26, 2015 email from the Agency manager regarding his improper dissemination of a union email to all Agency employees in Puerto Rico instead of just to union employees was considered a threat to his activities as the President of the union. 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). Under the facts as presented in this case, the proper forum for Complainant to raise his concerns is within the union's internal complaint process or as an unfair labor practice charge against the union with the Federal Labor Relations Authority, not in the EEO complaint process. The Agency properly dismissed the formal complaint for failure to state a claim.
The Agency's final decision dismissing the formal complaint for failure to state a claim is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)
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 Chap. 9 � VII.B (Aug. 5, 2015). 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
January 12, 2016
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
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