Robert Quesada, Complainant,v.Tom Ridge, Secretary, Department of Homeland Security, Agency.

Equal Employment Opportunity CommissionDec 1, 2003
01a33807 (E.E.O.C. Dec. 1, 2003)

01a33807

12-01-2003

Robert Quesada, Complainant, v. Tom Ridge, Secretary, Department of Homeland Security, Agency.


Robert Quesada v. Department of Homeland Security

01A33807

December 1, 2003

.

Robert Quesada,

Complainant,

v.

Tom Ridge,

Secretary,

Department of Homeland Security,

Agency.

Appeal No. 01A33807

Agency No. I-03-C015

DECISION

Initially, the Commission notes that complainant, as a class agent, filed

a class complaint on November 29, 2002, raising the claims at issue in the

present appeal. On February 3, 2003, an EEOC Administrative Judge (AJ)

denied complainant's request for class certification. On March 31, 2003,

the agency issued a final action fully implementing the AJ's decision

and order that the complaint be processed as an individual complaint.

Since complainant did not appeal from the agency's March 31, 2003 action,

this decision will not address the certification of the class complaint.

The record indicates that the agency, thereafter, issued its decision

dated May 29, 2003, dismissing complainant's individual complaint for

failure to state a claim, pursuant to 29 C.F.R. � 1614.107(a)(1).

The agency defined the complaint as alleging that complainant was

discriminated against based on race (Hispanic) when:

In its response to a union grievance filed by minorities, management

made disparaging remarks about the subject of the complaint;

Management has refused to follow occupational safety laws;

Management deters minorities from filing union grievances by not basing

its responses on the merits of the complaints but, rather, on its

discriminatory animus; and

Management does not answer minority initiated grievances in a timely

manner.

Complainant has not challenged the agency's framing of the complaint.

The agency stated in its decision that claims 1, 3, and 4 related to

the processing of union grievances by management and its responses

to those grievances. The record contains a copy of complainant's

response to the AJ's �Order Directing Specificity,� submitted during

the class certification determination, during which he sought to

clarify the alleged incidents of the complaint. After a review of

this response, including the complaint and the EEO Counselor's Report,

the Commission finds that claims 1, 3, and 4 fail to state a claim since

they constitute a collateral attack on the grievance process and involve

actions inextricably intertwined with the processing and administration

of complainant's grievance. It is well settled that an employee may

not use the EEO complaint process to lodge a collateral attack on the

grievance process. Kleinman v. United States Postal Service, EEOC Request

No. 05940585 (September 22, 1994); Lingad v. United States Postal Service,

EEOC Request No. 05930106 (June 24, 1993). The Commission has recognized

very narrow exceptions to the general prohibition on collateral attacks.

See Story v. United States Postal Service, EEOC Request No. 05960314

(October 18, 1996); Ellis v. United States Postal Service, EEOC Request

No. 05920011 (March 12, 1992) (discriminatory application of grievance

process may state a claim). Thus, for example, if an agency refused to

accept grievances from all persons within a protected class, such as race,

or disability, that claim would state a claim. In the instant case,

complainant did not allege that the agency refused to accept grievances

from all Hispanics. In fact, complainant was, clearly, allowed to file

grievances on a number of occasions which were denied.

With regard to claim 2, the agency stated in its decision that the subject

matter presented a generalized grievance for which complainant failed to

show any distinct and personalized injury. After a review of record,

the Commission agrees with the agency's findings since complainant

did not show how he was personally harmed as a result of the agency's

failure to follow occupational safety laws. See Warth v. Seldin, 422

U.S. 490 (1975). Furthermore, the Commission also finds that based

on complainant's response to the AJ, described above, it appears that

complainant was challenging management's denial, dated September 23,

2002, of his grievance concerning the same claim, i.e., the agency's

failure to follow occupational safety laws.

Accordingly, the agency's decision is hereby 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

December 1, 2003

__________________

Date