01a01441
08-25-2000
Phillip E. Sharpe, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Phillip E. Sharpe v. United States Postal Service
01A01441
August 25, 2000
.
Phillip E. Sharpe,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A01441
Agency No. 1-D-271-0052-99
DECISION
Upon review, the Commission finds that the agency's decision dated October
28, 1999, dismissing claim (1) in complainant's complaint due to untimely
EEO contact and claims (2) through (5) for failure to state a claim is
proper, pursuant to the regulations set forth at 64 Fed. Reg. 37,644,
37,656 (1999) (to be codified and hereinafter referred to as EEOC
Regulations 29 C.F.R. �� 1614.107(a)(1) and (2)).<1>
The agency, in its decision, defined the claims of complainant's complaint
as whether complainant was discriminated against based on race, age,
and disability when: (1) on January 22, 1999, management held a meeting
and informed the employees in pay location 230 that they proposed to
abolish or revert jobs due to automation, and that the three jobs which
included his job would have relief duties added; (2) on March 10, 1999,
he filed an injury due to job related stress by over demands of being
told he must learn new job responsibilities; (3) on May 19, 1999, he was
further stressed out when management failed to have someone available for
the supervisor to confer with in order to settle his case in mediation;
(4) on unspecified dates, management sent mail out to various associate
offices for part time employees to work, thereby giving them more hours
of work and he felt this was not the most efficient way to process
the mail; and (5) on March 19, 1999, a Labor Relations Specialist, did
not advance his grievance to the Step 2 level and he heard the Labor
Relations Specialist had no plans to settle his grievance because the
Labor Relations Specialist thinks complainant should retire.
With regard to claim (1), the agency dismissed it since the alleged
incident occurred on January 22, 1999, but complainant, a Distribution
Clerk, PS-5, at pay location 230, did not contact an EEO Counselor until
April 22, 1999, which was beyond the 45-day time limit. On appeal,
complainant does not provide adequate justification to warrant an
extension of the time limit for initiating EEO contact. Furthermore, it
is noted that complainant indicates on appeal that the alleged incident
did not actually occur until March 10, 1999, which was raised in claim
(2), described below. Based on the foregoing, the agency's dismissal
of claim (1) was proper.
With regard to claim (2), complainant indicated that he worked on the
belt, but on March 10, 1999, he was ordered to be trained for relief on
registry job. The EEO Counselor's Report indicates that complainant was
not trained for the registry job; rather another employee volunteered to
be trained for the registry relief duties/job. Complainant on appeal does
not dispute this statement. Based on the foregoing, the Commission finds
that complainant is not aggrieved with regard to the alleged statement
which was not implemented. The Commission has consistently held that a
remark or comment unaccompanied by concrete action is not a direct and
personal deprivation sufficient to render an individual aggrieved for
the purposes of Title VII. Henry v. USPS, EEOC Request No. 05940695
(February 9, 1995).
With regard to claim (3), it appears that the alleged action concerned
his complaint mediation processing. Specifically, complainant alleged
that neither a Plan Manager nor a Labor Relations Specialist was present
during the mediation conference at issue. It is noted that under the
regulations, the parties are encouraged to mediate/settle a complaint.
However, the Commission finds that the agency's failure to mediate/settle
the complaint does not in and of itself constitute an actionable claim.
Thus, the Commission finds that claim (3) fails to state a claim within
the purview of the regulations.
With regard to claim (4), complainant indicated that he was injured as
a result of the alleged incident since his job is being abolished while
part-time clerks were getting more hours working on his job. There is
no evidence in the record that his job was abolished. Furthermore,
complainant does not allege that his duties were actually taken away as
a result of the alleged incident. Thus, the Commission finds that claim
(4) failed to state a claim.
With regard to claim (5), the Commission finds that it fails to state a
claim since it constitutes a collateral attack on the grievance process
and involves actions inextricably intertwined with the processing and
administration of complainant's grievance. It is well settled that an
employee may not use the EEO complaint process to lodge a collateral
attack on the grievance process. Kleinman v. United States Postal
Service, EEOC Request No. 05940585 (September 22, 1994); Lingad v. United
States Postal Service, EEOC Request No. 05930106 (June 24, 1993).
Accordingly, the agency's decision 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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
August 25, 2000
__________________
Date
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.