01986085
01-05-2001
Robert L. Cassidy v. United States Postal Service
01986085
January 5, 2001
.
Robert L. Cassidy,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01986085
Agency No. 4D-250-0092-98
DECISION
Complainant filed a timely appeal with this Commission from an agency
decision dated July 8, 1998, dismissing 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,
complainant alleged that he was subjected to discrimination on the basis
of reprisal when:
On April 10, 1998, the agency failed to comply with a July 1997 APWU
[American Postal Workers Union] settlement agreement;
On January 27, 1998, after a shortage was discovered, there was no count
of his drawer as he requested; and
On March 31, 1998, he was sent home early while a new employee was
permitted to do his job.
The agency dismissed claim 1 pursuant to EEOC Regulation 29 C.F.R. �
1614.107(a)(1), for failure to state a claim. The agency determined
that complainant was not an aggrieved employee within the meaning of
EEOC Regulations. The agency dismissed claim 2 of the complaint pursuant
to 29 C.F.R. � 1614.107(a)(2), on the grounds that complainant failed
to initiate timely contact with an EEO Counselor. Finally, the agency
dismissed claim 3 pursuant to 29 C.F.R. � 1614.107(a)(1), because it
stated the same claim that is pending before or has been decided by the
agency or Commission.
Claim 1
The record reflects that this claim involved an APWU grievance settlement
and complainant's dissatisfaction therewith. Therefore, it fails to
state a processable claim. The Commission has held that claims of
discrimination based on the settlement of a grievance are not properly
reviewed by the Commission. See Gwyn v. USPS, EEOC Request No. 05900844
(October 4, 1990). Further, the Commission held that whether a complaint
represents a collateral attack on a grievance decision, it does not
state a claim under EEOC Regulations. See Lingad v. USPS, EEOC Request
No. 05930106 (June 24, 1993). Accordingly, the dismissal of claim 1
is AFFIRMED.
Claim 2
The record indicates that complainant contacted an EEO Counselor on
April 3, 1998, concerning claim 2 which occurred on January 27, 1998.
Complainant's contact of an EEO Counselor was beyond the 45 day limitation
period set forth in EEOC Regulation 29 C.F.R. � 1614.105(a)(1).
Complainant failed to provide the Commission with any persuasive
evidence to justify his delay in seeking counseling. In that regard,
we find that the agency's dismissal of claim 2 as untimely was proper.
We AFFIRM the agency's dismissal of claim 2 of the instant complaint.
Claim 3
The agency found that complainant stated the same claim in a prior
complaint which was heard by an EEOC Administrative Judge (AJ).
In support of its decision, the agency provides the Commission with a
copy of the AJ's Recommended Decision, which addressed the matter raised
in claim 3. Upon review, we find that claim 3 is the same claim that
was previously decided by the Commission pursuant to the AJ's May 21,
1998 decision. Therefore, the Commission AFFIRMS the agency's dismissal
of claim 3 in accordance with 29 C.F.R. � 1614.107(a)(1).
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
January 5, 2001
_______________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_________________
Date
__________________________
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 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.