01981888
03-26-1999
Stephen J. Zarski, Appellant, v. William J. Henderson, Postmaster General, U. S. Postal Service, Agency
Stephen J. Zarski v. U. S. Postal Service
01981888
March 26, 1999
Stephen J. Zarski, )
Appellant, )
) Appeal No. 01981888
v. ) Agency No. 1E-891-0022-97
)
William J. Henderson, )
Postmaster General, )
U. S. Postal Service, )
Agency )
)
DECISION
INTRODUCTION
Appellant filed an appeal with this Commission from a final agency
decision concerning 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. The final agency decision was dated November
21, 1997, and received by appellant on December 8, 1997. The appeal
was postmarked January 6, 1998. Accordingly, the appeal is timely (see
29 C.F.R. �1614.402(a)), and is accepted in accordance with EEOC Order
No. 960, as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed appellant's
reprisal claim for failure to state a claim.
BACKGROUND
Appellant filed a formal complaint of discrimination on September
10, 1997, alleging discrimination on the basis of reprisal (prior EEO
activity) when, in May 1997: 1) his back pay award from the settlement of
a grievance was improperly delayed in being delivered to him; and 2) when
the agency informed the State of Nevada Unemployment Compensation Office
of the back pay award, triggering from that office a demand that appellant
repay his benefits. In its final agency decision, the agency dismissed
appellant's reprisal claim on the grounds that he had failed to state
a claim for which relief could be granted. The agency stated that: 1)
appellant received his check, dated May 14, 1997, on May 22, 1997; and 2)
the State of Nevada was paid in full for appellant's unemployment benefits
with a check from the Postal Service on July 8, 1997. The agency,
therefore, argued that the appellant had not claimed any direct harm
and was not an aggrieved employee. This appeal followed.
On appeal, appellant claims that the Finance department received his
check on May 14, 1997, and sent it by interoffice mail to be delivered
to him the next day. He argues that the check was sent instead to
his previous supervisor (against whom he has filed discrimination
complaints), who then opened the sealed envelope containing the check,
and deliberately routed it back to appellant in a manner designed to
delay delivery, rather than choosing the quickest method available.
Appellant is claiming interest on the amount of the back pay award for
the period during which delivery was delayed.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.107(a) provides that an agency
shall dismiss a complaint which fails to state a claim pursuant to 29
C.F.R. �1614.103. 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,
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 (Apr. 21, 1994). To establish that he is an
"aggrieved employee" and therefore state a claim under the regulations,
a complainant must allege that he was injured in fact.
A review of appellant's complaint and appeal statement reveals that
appellant's allegations involve actions taken by the agency as a
consequence of the settlement of a grievance filed by appellant.
The Commission has held that an employee cannot use the EEO complaint
process to lodge a collateral attack on another proceeding. Kleinman
v. USPS, EEOC Request No. 05940585 (September 22, 1994); Lingad v. USPS,
EEOC Request No. 05930106 (June 24, 1993). A collateral attack involves
a challenge to another forum's proceeding, i.e., the grievance process,
the EEO process in a separate case, the unemployment compensation process,
the workers' compensation process, the tort claims process, and so forth.
See Story v. USPS, EEOC Request No. 05960314 (October 18, 1996), Fisher
v. Department of Defense, EEOC Request No. 05931059 (July 15, 1994).
The proper forum for appellant to raise challenges to actions which
occurred during and as a consequence of the grievance process is in
that process itself. The Commission finds that each allegation of
appellant's complaint constitutes a collateral attack on the grievance
process. Therefore, appellant has failed to state a claim under 29
C.F.R. �1614.107(a).
Accordingly, for the reasons stated above, the decision of the agency
regarding appellant's complaint was proper and 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. 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 (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:
March 26, 1999
______________ ___________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations