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.