Clovis Camargo, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, (New York Metro Area) Agency.

Equal Employment Opportunity CommissionSep 22, 2005
01a54266 (E.E.O.C. Sep. 22, 2005)

01a54266

09-22-2005

Clovis Camargo, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (New York Metro Area) Agency.


Clovis Camargo v. United States Postal Service

01A54266

September 22, 2005

.

Clovis Camargo,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

(New York Metro Area)

Agency.

Appeal No. 01A54266

Agency No. 4A-070-0074-05

DECISION

Complainant filed a timely appeal with this Commission from the agency's

decision dated April 27, 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. In his

complaint, complainant alleged that he was subjected to discrimination in

reprisal for prior EEO activity in that a signed grievance settlement

agreement dated July 13, 2004, has not been processed for payment.

The agency dismissed his complaint for failure to state a claim, pursuant

to 29 C.F.R. � 1614.107(a)(1) and for untimely EEO Counselor contact,

pursuant to 29 C.F.R. � 1614.102(a)(2).

The record indicates that complainant received a Notice of Removal

dated November 12, 2003, for violence in the workplace, and was placed

on emergency suspension. Complainant filed a claim with the Office of

Workers' Compensation Programs (OWCP) that was accepted on January 23,

2004. He stated that he was out of work for 6 months on compensation.

On July 13, 2004, complainant met with his union representative and

Labor Relations at a settlement meeting and signed off on a settlement

agreement. Upon returning to work on October 4, 2004, complainant stated

that he has tried everything from letters and phone calls to get his

settlement agreement honored, but it has not been implemented.

Regarding the agency's dismissal for failure to state a claim,

the regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in

relevant part, that an agency shall dismiss a complaint 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, .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). In the instant case, the agency

explained that it has no authority or jurisdiction to enforce settlements

executed outside the EEO process. Essentially, the agency found that

complainant lodged a collateral attack on a grievance settlement agreement

and failed to establish that he was an �aggrieved employee.�

The Commission finds that the complaint is outside the purview of

the EEO process and that the agency properly dismissed this matter

for failure to state a claim. The grievance settlement agreement is

not an agreement generated through the EEO administrative process.

We find that complainant is improperly attempting to use the EEO

process to collaterally attack the outcome of the non-EEO process.

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

(September 22, 1994). The proper forum for complainant to have raised

his dissatisfaction with the processing of his settlement agreement is

within that process in which he settled the matter. Given that this

complaint is properly dismissed for failure to state a claim, we will

not address the agency's other ground for dismissal.

Accordingly, 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 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

September 22, 2005

__________________

Date