05981038
02-03-2000
Robert J. Maietta, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (N.E./N.Y. Metro Area), Agency.
Robert J. Maietta v. United States Postal Service
05981038
February 3, 2000
Robert J. Maietta, )
Complainant, )
) Request No. 05981038; 05981050
v. ) Appeal No. 01973787; 01980340
) Agency No. 1A-106-0002-97; H0-0091-97
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(N.E./N.Y. Metro Area), )
Agency. )
____________________________________)
DENIAL OF REQUESTS FOR RECONSIDERATION
On August 10, 1998, Robert J. Maietta (complainant) initiated two
separate requests to the Equal Employment Opportunity Commission (EEOC)
to reconsider the decisions in Robert J. Maietta v. United States
Postal Service, EEOC Appeal No. 01973787 (July 27, 1998) and Robert
J. Maietta v. United States Postal Service, EEOC Appeal No. 01980340
(July 28, 1998).<1> Both prior decisions at issue arise from the same
underlying complaint. By response filed September 1, 1998, the agency
opposed complainant's request for reconsideration of Appeal No. 01973787,
and filed its own request for reconsideration on different grounds.
By further response filed September 17, 1998, the agency opposed
complainant's request for reconsideration of Appeal No. 01970340 as
well. We hereby consolidate all three requests for reconsideration.
EEOC Regulations provide that the Commissioners may, in their discretion,
reconsider any previous Commission decision where the requesting
party demonstrates 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. See 64 Fed. Reg. 37,644, 37,654 (1999)
(to be codified and hereinafter referred to as 29 C.F.R. �1614.405(b)).
For the reasons set forth herein, both of complainant's requests, as
well as the agency's request, are DENIED.
The underlying complaint alleged retaliation based on prior EEO activity
and discrimination based on race (White) and sex (male), in violation
of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �
2000e et seq., arising out the following alleged incidents:
(1) on September 4, 1996, a Human Resources Specialist denied that
a meeting between her, complainant, and his union representative was
a Step 1 meeting under the collective bargaining agreement, and then
allowed a Labor Relations Representative into the meeting;
(2) during the above-mentioned meeting, a Labor Relations Representative
spit at him and poked his finger at him;
(3) in a letter dated August 14, 1996, the Area Manager of Human Resources
made derogatory statements about him;
(4) on October 1, 1996, his grievance regarding the Labor Relations
Representative interrupting the above-mentioned Step 1 meeting was denied;
(5) on October 7, 1996, his grievance regarding the Area Manager of
Human Resources was denied;
(6) on October 7, 1996, his grievance regarding inclusion of certain
letters in his Injury Compensation file was denied.
The complaint also alleged, without elaboration, "breach of settlement
agreements of December 11, 1981, June 4, 1986, and November 17, 1992."
In its final agency decision (FAD #1), the agency accepted incidents
3 and 5 for investigation and dismissed incidents 1, 2, 4, and 6 for
failure to state a claim. Following an investigation, the agency issued
a second final agency decision (FAD #2), which dismissed incidents 3
and 5 for failure to state a claim.
The prior decision in EEOC Appeal No. 01973787 affirmed FAD #1,
and noted that to the extent complainant wanted to raise breach of
settlement allegations, he should follow the procedures set forth in
EEOC regulations by notifying the EEO Director, in writing, of the
alleged noncompliance. The prior decision in EEOC Appeal No. 01980340
affirmed FAD #2, finding that incident 3 did not adversely affect a
term, condition, or privilege of complainant's employment, and that the
challenge to incident 5 constituted a prohibited collateral attack on
the result of an administrative grievance proceeding.
In complainant's request to reconsider the prior decision in Appeal
No. 01973787, he contends that the FAD improperly dismissed allegations
1, 2, 4, and 6 for failure to state a claim. Complainant also asserts
that he has previously raised breach of settlement allegations with the
agency's EEO Director, in the instant complaint and on other occasions,
but has not prevailed.
In the agency's request to reconsider the prior decision in Appeal
No. 01973787, it contends that the reference in the prior decision to
complainant's right to raise allegations of settlement breach should be
stricken because complainant has previously raised breach of settlement
allegations. Specifically, the agency references the decision in Robert
J. Maietta v. United States Postal Service, EEOC Appeal No. 01971273
(October 24, 1997), request for reconsideration pending, EEOC Request
No. 05980091 (filed November 3, 1997), which held that some of the same
allegations at issue herein did not constitute breaches of complainant's
1981, 1986, and 1992 settlement agreements, and that the proper forum in
which to raise alleged new instances of discrimination or retaliation
arising after execution of a settlement agreement is the EEO complaint
process, which complainant had already initiated by filing the instant
complaint.
In complainant's request to reconsider the prior decision in Appeal
No. 01980340, he argues that the agency representative's alleged conduct
toward him during his grievance proceeding was motivated by retaliation,
and that the derogatory statements about him contained in the letter
at issue in incident 3 have adversely affected a term, condition, or
privilege of his employment by "licens[ing]" other agency misconduct
against him.
The prior decision noted that the allegedly derogatory letter by the
Manager, Human Resources, did not harm complainant with respect to a
term, condition, or privilege of his employment. This is correct with
respect to complainant's discrimination claims. However, with respect to
complainant's retaliation claim, the Commission interprets the statutory
retaliation clauses "to prohibit any adverse treatment that is based on
a retaliatory motive and is reasonably likely to deter the charging party
or others from engaging in protected activity." EEOC Compliance Manual,
Section 8 (Retaliation) at 8-13 - 8-14 (May 20, 1998). We apply this
standard in analyzing complainant's retaliation claims.
However, applying this legal standard, complainant's requests to
reconsider have nonetheless failed to identify any argument or evidence
warranting reconsideration of the prior decisions, which properly
affirmed the dismissal of allegations 1, 2, 3, 4, 5 and 6 for failure
to state a claim. In particular, in the letter written by the Manager,
Human Resources, regarding a supervisor's request for mediation of
complainant's pending complaints, the allegedly defamatory reference is so
incidental that, as a matter of law, it is not reasonably likely to deter
complainant or others from engaging in protected activity. In addition,
we note that while discriminatory or retaliatory application of grievance
procedures can be actionable under Title VII, an employee cannot use the
EEO complaint process to lodge a collateral attack on the outcome of
a grievance proceeding. See Kleinman v. United States Postal Service,
EEOC Request No. 05940585 (September 22, 1994). The complaint and the
investigative file reflect that complainant is simply dissatisfied with
the administrative decisions on his grievances. None of complainant's
arguments concerning what he deems to be improper agency conduct in
connection with his grievances alter our previous conclusion that
complainant is attempting to collaterally attack the result of his
grievances. Therefore, we decline to reconsider this aspect of the
previous decisions. Story v. United States Postal Service, Request
No. 05960099 (December 9, 1996). Porter v. Department of the Navy, EEOC
Request No. 05950024 (July 12, 1996); Meros v Department of Commerce,
EEOC Request No. 05950300 (July 7, 1995); Cron v. United States Postal
Service, EEOC Request No. 05890272 (July 27, 1989).
The agency's request to reconsider has also failed to satisfy the relevant
criteria. The prior decision in Appeal No. 01973787 properly advised
complainant of his rights, in general, to raise allegations of settlement
breach in any situation where appropriate. This was appropriate to
note inasmuch as the complaint made an unclear reference to settlement
breach, which must be raised pursuant to the procedures set forth in our
regulations, not in an EEO complaint. It goes without saying that to
the extent complainant has already raised a particular incident through
the settlement breach procedures, it will not be subjected to redundant
review. The prior decision did not instruct complainant regarding whether
or not breach allegations are properly raised in this particular instance.
The prior decision expressed no view regarding whether there in fact
exist any breach allegations which complainant has not already raised
pursuant to the procedures set forth in our regulations.
After a review of complainant's and the agency's respective requests
for reconsideration, the previous decisions, and the entire record,
the Commission finds that the parties' respective requests do not meet
the criteria of 29 C.F.R. � 1614.405(b), and it is the decision of the
Commission to deny the requests. The decisions of the Commission in EEOC
Appeal Nos. 01973787 and 01980340 remain the Commission's final decisions.
There is no further right of administrative appeal from a decision of
the Commission on a request for reconsideration.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P1199)
This decision of the Commission is final, and there is no further right
of administrative appeal from the Commission's decision. 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.
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:
February 3, 2000
Date Frances M. Hart
Executive Officer
Executive Secretariat
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this 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.