01a62990
08-29-2006
Samir T. Amin, Complainant, v. John E. Potter, Postmaster General, U.S. Postal Service, Agency.
Samir T. Amin,
Complainant,
v.
John E. Potter,
Postmaster General,
U.S. Postal Service,
Agency.
Appeal No. 01A62990
Agency No. 4C-190-0019-06
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated March 10, 2005, dismissing his complaint of unlawful
employment discrimination in violation of Title VII of the Civil
Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.
Upon review, the Commission finds that complainant's complaint was
properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1), for failure
to state a claim.
During the relevant period, complainant was employed as a Part-time
Flexible Carrier at a Pennsylvania facility of the agency. On November
9, 2005, complainant initiated contact with an EEO Counselor, and,
on January 26, 2006, filed a formal EEO complaint, alleging that
the agency discriminated against him on the bases of race (Black)
and national origin (African-American) when his manager (1) denied
complainant's two requests to use annual leave to take school tests,
(2) denied complainant's request to adjust his schedule by one hour so
that he could attend school, (3) refused to reinstate 52 hours of sick
leave complainant used for a work-related injury, and only agreed to
reinstate 20 hours after complainant filed a grievance on the matter,
and (4) refused to review pay step documentation submitted by complainant
and lost the documentation.1
In its March 10 final decision, the agency dismissed complainant's
claim that "on November 10, 2005, he asked his manager to comply with a
grievance settlement dated March 23, 2005," which relates to claims (1)
through (3) above.2 Specifically, the agency stated that complainant's
complaint lodged a collateral attack on the negotiated grievance process,
and, thus, failed to state a claim.
The record contains two settlement agreements dated March 23, 2005,
between the agency and the incumbent union. In pertinent part, one
agreement stated "[complainant] will fill out [leave requests] to use
leave to attend school and they will be approved for the days of school."
The second agreement stated, in pertinent part, "return 32 hours of sick
leave to [complainant's] balance and pay 52 hours of [continuation of pay]
time.
The Commission finds that the complaint fails to state a claim under
EEOC regulations because complainant failed to show that he suffered a
present harm or loss with respect to a term, condition, or privilege of
employment for which there is a remedy. See Diaz v. Dep't of the Air
Force, EEOC Request No. 05931049 (April 21, 1994). With regard to (1)
through (3), the record reveals that complainant is challenging compliance
with the terms of a grievance settlement reached between the incumbent
union and the agency, in which complainant was the grievant. Such a
claim involves a collateral attack on another proceeding and, thus,
fails to state a claim. See Wills v. Department of Defense, EEOC Request
No. 05970596 (July 30, 1998); Kleinman v. United States Postal Service,
EEOC Request No. 05940585 (September 22, 1994); Lingad v. United States
Postal Service, EEOC Request No. 05930106 (June 25, 1993). Regarding (4),
complainant failed to allege actions which would render him aggrieved.
Based on the above, the agency's final decision dismissing complainant's
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 tends 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
August 29, 2006
__________________
Date
1We note that the EEO Counselor's Report indicates a claim of "[d]enied
change of schedule to attend non-[agency] classes," which is similar to
claims (1) and (2) above. However, the pre-complaint indicates the four
claims indicated in the formal complaint.
2 We regard the agency's failure to address claim (4) as a dismissal of
that claim.
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01A60602
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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01A62990
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