01a14742
02-12-2002
Ronald Neely, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Ronald Neely v. United States Postal Service
01A14742
February 12, 2002
.
Ronald Neely,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A14742
Agency No. 1-I-642-0013-01
DECISION
Upon review, the Commission finds that the complaint was properly
dismissed pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state
a claim. Complainant claims that he is being discriminated against on
the basis of sex when a manager comes in his work area and talks with
a coworker, and the coworker is allowed to stop working while everyone
else is required to continue working. Complainant further claims that he
had filed a grievance concerning this issue and that a verbal agreement
was reached with the manager, but that the manager refuses to comply
with the agreement.
The agency issued a final decision dismissing the complaint for failure
to state a claim after finding that the complaint was a collateral attack
on the grievance process. On appeal, complainant contradicts his prior
contentions and argues that no grievance was filed.
The Commission finds that the complaint fails to state a claim under
29 C.F.R. Part 1614 because a review of the complaint shows that it
constitutes a collateral attack of the grievance process. We have
previously held that claims which challenge the proceeding or decision
of another forum constitute a collateral attack and fail to state a
claim under EEOC Regulations. Fisher v. Department of Defense, EEOC
Request No. 05930106 (July 15, 1994). A review of the formal complaint
shows that complainant stated that he had pursued this matter through
the grievance process, despite his contention on appeal that he had
not done so. By complainant's own admission in his formal complaint,
complainant stated that he had �filed a disparate treatment grievance�
with his union. Complainant further stated that though this was a
�verbal agreement only, no papers were signed concerning this incident
. . .,� an agency Union Vice President discussed complainant's concerns
with the agency manager, and told him that his visits to complainant's
work area were counter productive unless all employees were provided a
break at during the manager's visits. Accordingly, the agency's final
decision dismissing the complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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), 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 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 (S0900)
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
February 12, 2002
Date