Richard B. Hulsizer, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionApr 10, 2000
01986841 (E.E.O.C. Apr. 10, 2000)

01986841

04-10-2000

Richard B. Hulsizer, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Richard B. Hulsizer v. United States Postal Service

01986841

April 10, 2000

Richard B. Hulsizer, )

Complainant, )

)

v. ) Appeal No. 01986841

William J. Henderson, ) Agency No. 4F-940-0106-98

Postmaster General, )

United States Postal Service, )

Agency. )

____________________________________)

DECISION

On September 16, 1998, complainant filed a timely appeal with this

Commission from a final agency decision (FAD) received by him on

August 17, 1998, pertaining to his complaint of unlawful employment

discrimination in violation of Title VII of the Civil Rights Act of 1964,

as amended, 42 U.S.C. � 2000e et seq. <1> In his complaint, complainant

alleged that he was subjected to discrimination on the bases of race

(Black), sex (male), and in reprisal for prior EEO activity when:

On November 24, 1997, January 26, 1998, and March 11, 1998, management

did not comply with the terms of a union settlement agreement when

complainant's transfer evaluation was not corrected;

On November 24, 1997, January 26, 1998, and March 11, 1998, management

did not comply with the terms of a union settlement agreement when

complainant was not paid for forty-eight (48) hours of Leave Without

Pay (LWOP);

On November 24, 1997, January 26, 1998, and March 11, 1998, management

did not comply with the terms of a union settlement agreement when

complainant was not paid for 30.43 hours of overtime; and

On March 7, 1998, religious material was left at complainant's case

and a subsequent investigation of this incident was not conducted.

The agency dismissed claims (1)-(3) under 64 Fed. Reg. 37,644, 37,656

(1999)(to be codified and hereinafter referred to as 29 C.F.R. �

1614.107(a)(1)) on the grounds that complainant failed to state a claim.

Specifically, the agency claimed that claims (1)-(3) constituted

a prohibited collateral attack on the union grievance procedure.

In addition, the agency stated that issue (4) was not raised during EEO

Counseling and noted that this issue would be remanded for counseling.

With regard to issue (1), complainant claims that he did not receive the

transfer agreed to under the Step 3 Settlement Agreement until June 24,

1998, following intervention by his State Senators. Complainant also

claims that the original evaluation he received violated his civil rights

and denied him equal protection under the law as compared to previous

employees who did receive transfers.

With regard to issue (2), complainant states that the agency's denial of

LWOP was an outright abusive campaign by management to intimidate and

retaliate against him because of his race and previous EEO activity.

With regard to issue (3), complainant claims that the agency violated

the Joint Statement on Overtime. Finally, complainant charges that the

San Francisco EEO Office was biased in favor of management and failed

to conduct a proper investigation into his allegations.

The record reveals that complainant was denied a transfer to another

facility on May 8, 1996, in part, based on information contained in his

evaluation. According to a November 24, 1997 Step 3 Grievance Settlement

Agreement, management agreed to provide clarification regarding the motor

vehicle accident and letter of warning that were cited in grievant's

evaluation. In addition, according to a March 18, 1998 Step 2 Grievance

Settlement Agreement, the agency agreed to pay complainant 48 hours of

Annual Leave and replace LWOP hours credited in pay period 1/97 with

Annual Leave. With regard to the overtime issue, complainant indicated

that the union filed a class grievance which resulted in a determination

that he was denied 30.43 hours of overtime. Furthermore, an agency

official acknowledged that the agency owed complainant overtime under

a union settlement.

In the present case, the Commission finds that complainant is attempting

to lodge a collateral attack on the grievance process. A collateral

attack involves a challenge to another forum's proceeding, i.e., the

grievance process, the EEO process in a separate case, the unemployment

compensation process, the workers' compensation process, the tort claims

process, and so forth. See Story v. United States Postal Service, EEOC

Request No. 05960499 (June 13, 1997) (citing Lau v. National Credit Union

Administration, EEOC Appeal No. 01941170 (Sept. 8, 1994), aff'd EEOC

Request No. 05950037 (Mar. 18, 1996)). 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 (Sept. 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 arose out of a grievance proceeding was through the grievance

process. It is inappropriate to now attempt to use the EEO process to

collaterally attack issues which arose through the grievance process.

Such attacks must be dismissed for failure to state a claim. See Lingad,

supra (claim alleging harm from ruling in grievance process fails to

state a claim under the EEO process); see also 29 C.F.R. �1614.107(a)(1)

(requiring dismissal of complaints that fail to state a claim). Since the

issues in the present case involve a dispute with the implementation of

grievance settlement agreements, claims (1)-(3) fail to state a claim.

Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter

referred to as 1614.107(a)(2)), provides that a complaint shall be

dismissed that raises a matter that has not been brought to the attention

of an EEO Counselor and that is not like or related to a matter that

has been brought to the attention of a Counselor. With regard to issue

(4), we note that the record contains no evidence that complainant raised

this issue with the EEO Counselor. In addition, we find that issue (4),

regarding the agency's failure to investigate religious material left at

complainant's case, is not like or related to issues (1) - (3) involving

the agency's alleged noncompliance with grievance settlement agreements.

Consequently, we find that the agency properly remanded claim (4) for

complainant to have counseling thereon.

Finally, we note that on appeal, complainant raised a new contention,

that the EEO Office was unfairly biased in favor of management. The

Commission has held that when claims of improper processing are raised,

the complainant should be referred to the agency official responsible for

the quality of complaints processing, and the agency should earnestly

attempt to resolve any dissatisfaction with the complaints process as

early and expeditiously as possible. EEOC-MD 110 (5-25), as revised,

November 9, 1999. Complainant is therefore advised to contact an official

in the agency's EEO office, if he believes that any complaint has been

improperly processed.

Accordingly, the agency's decision to dismiss complainant's complaint

was proper 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:

April 10, 2000

____________________________

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days of mailing. I certify that

the decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

_______________ __________________________

Date Equal Employment Assistant

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.