01990286
10-06-1999
Walter J. Bailey, Jr., Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Walter J. Bailey, Jr. v. United States Postal Service
01990286
October 6, 1999
Walter J. Bailey, Jr., )
Appellant, )
)
v. ) Appeal No. 01990286
) Agency No. 1-D-297-0009-98
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
On October 13, 1998, appellant filed an appeal with this Commission from
a final agency decision (FAD) dated September 8, 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, appellant alleged that he was subjected to
discrimination on the bases of race (African-American) and in reprisal
for prior EEO activity when:
On April 4, 1998 and April 24, 1998, appellant was denied a copy of
his disciplinary file in its entirety (both active and inactive); on
April 24, 1998, appellant was denied a request to observe the individual
processing of his request (duplication of the file);
Appellant's request of May 2, 1998, for an agency employee to remove
documents from his file was denied; and
On May 5, 1998, appellant learned that a Seven (7) Day Notice of
Suspension remained in appellant's files although an arbitrator's
award dated May 26, 1997 stipulated that it must be removed from all
of appellant's files.
The agency dismissed appellant's complaint pursuant to EEOC Regulation
29 C.F.R. �1614.107(a), for failure to state a claim. Specifically,
the agency found that appellant failed to establish harm to a term,
condition, or privilege of employment. The agency also noted that
management removed the suspension notice from appellant's files, and that
the notices were not used or cited in any disciplinary action prior to
removal of the records.
On appeal, appellant contends that the information was still in his
records on May 5, 1998, although an arbitrator ordered that it be
removed in 1997. Further, appellant claims for the first time that
he was denied many things during the months that the record remained
in his file, including the denial of Family Medical Leave, and loss of
appellant's position. Appellant also cites to the Freedom of Information
Regulations at 39 C.F.R. �265 et seq. to support his argument that he
has a right to view his records.
In response, the agency contends that it removed the documents
in question from appellant's files. The agency also asserts that
appellant's removal is the subject of a pending EEO complaint, and,
thus, should not be considered in the present case.
The record includes a copy of an arbitrator's union grievance award,
dated May 26, 1997, which requires the agency to remove copies of a
7-Day Notice of Suspension from appellant's records.
EEOC Regulation 29 C.F.R. �1614.107(a) provides, in relevant part, that
an agency shall dismiss a complaint, or portion thereof, that fails to
state a claim. An agency shall accept a complaint from any aggrieved
employee or applicant for employment who believes that he or she has been
discriminated against by that agency because of race, color, religion,
sex, national origin, age or disabling condition. 29 C.F.R. �1614.103;
�1614.106(a). The Commission's federal sector case precedent has long
defined an "aggrieved employee" as one who suffers a present harm or loss
with respect to a term, condition, or privilege of employment for which
there is a remedy. Diaz v. Department of the Air Force, EEOC Request
No. 05931049 (April 21, 1994).
Regarding allegations (1) and (2), the Commission finds that appellant is
alleging that the agency improperly denied his requests for information
pursuant to the Federal Freedom of Information Act (FOIA). The Commission
has held that it does not have jurisdiction over the processing of FOIA
requests. Instead, persons having a dispute regarding such requests
should bring any appeals about the processing of his or her FOIA requests
under the appropriate FOIA regulations. Gaines v. Department of the Navy,
EEOC Request No. 05970386 (June 12, 1997). Further, the Commission
does not have jurisdiction over the enforcement of 39 C.F.R. �265.
In the instant case, therefore, appellant's allegation that the agency
improperly denied his FOIA request fails to state a claim within the
purview of the EEOC regulations at 29 C.F.R. �1614.
Regarding allegation (3), 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 24, 1993). In the case
at hand, the proper forum for appellant to have raised his allegation
of dissatisfaction with the implementation of the arbitration decision
was within the negotiated grievance process itself and/or with the
Arbitrator. Since the allegation is a dispute with the implementation
of the determination rendered in another administrative dispute
resolution process, the allegation fails to state a claim. See Suchil
v. United States Postal Service, EEOC Appeal No. 01982943 (Mar. 10, 1999)
(allegation that the agency failed to provide back pay as ordered by an
arbitrator's award fails to state a claim). It is inappropriate for
appellant to attempt now to use the EEO process to enforce an action
taken or ordered through another forum.
Appellant is advised that if he wishes to pursue, through the EEO
process, the additional reprisal allegations he raised for the first
time on appeal, he shall initiate contact with an EEO counselor within
fifteen (15) days after he receives this decision. The Commission
advises the agency that if appellant seeks EEO counseling regarding
the new allegations within the above 15 day period, the date appellant
filed the appeal statement in which he raised these allegations with
the agency shall be deemed to be the date of the initial EEO contact,
unless he previously contacted a counselor regarding these matters, in
which case the earlier date would serve as the EEO counselor contact date.
Cf. Qatsha v. Department of the Navy, EEOC Request No. 05970201 (Jan. 16,
1998).
CONCLUSION
Accordingly, the agency's dismissal is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. In the alternative, you may file a
civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. Filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1092)
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:
October 6, 1999
__________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
1The agency was unable to supply a copy of a certified mail return receipt
or any other material capable of establishing the date appellant received
the agency's final decision. Accordingly, since the agency failed to submit
evidence of the date of receipt, the Commission presumes that appellant's
appeal was filed within thirty (30) days of receipt of the agency's final
decision. See, 29 C.F.R. �1614.402.