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