0120121185
05-22-2012
Ben M. Carrasco, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Pacific Area), Agency.
Ben M. Carrasco,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 0120121185
Agency No. 1F941006611
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated December 5, 2011, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Mail Handler at the Agency's P&DC facility in San Francisco, California.
On November 16, 2011, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the basis of race (Latino)1 when, on or about June 10, 2011, he should have gotten paid for 28 days sick leave for time spent in a hospital per EAP counseling.
The Agency dismissed the complaint, pursuant to 29 C.F.R. � 1614.107(a) for untimely EEO counselor contact and/or failure to state a claim. The instant appeal followed.
Briefly, Complainant received a Notice of Removal in April 2011. However, he later entered into a last chance agreement with the Agency on June 10, 2011, as part of a grievance he filed on his removal. As part of the agreement, his removal was reduced to a 50-day time served suspension with no back pay awarded. Although the last-chance agreement provided for no back pay, Complainant, in his instant EEO complaint, is contesting that he was not paid for 28 days of sick leave for the time he spent in the hospital.
In his appeal Complainant states there was a verbal agreement that he could use his sick leave to cover his absence and he submitted a request for the leave, which was denied in July 2011. Complainant also stated in his appeal that he learned on June 12, 2011, that another person got a less punitive settlement.
ANALYSIS AND FINDINGS
A fair reading of the instant EEO complaint reveals that Complainant is now challenging the no-back pay clause of the last chance agreement which he signed pursuant to a grievance he filed. Complainant is not happy with the application of the agreement's terms. However, the Commission has held that an employee cannot use the EEO complaint process to lodge a collateral attack on another proceeding. See Wills v. Dep't of Def., EEOC Request No. 05970596 (July 30, 1998); Kleinman v. U.S. Postal Serv., EEOC Request No. 05940585 (Sept. 22, 1994); Lingad v. U.S. Postal Serv., EEOC Request No. 05930106 (June 25, 1993). The proper forum for Complainant to have raise his challenges to the terms of a settlement of a grievance is within the grievance process itself. It is inappropriate to now attempt to use the EEO process to collaterally attack actions which occurred as a result of his grievance.
As we conclude that this complaint in an impermissible collateral attack on a grievance settlement, the EEO complaint was correctly dismissed for failure to state a claim under the EEOC regulations. Moreover, because we find the matter is a collateral attack on the grievance settlement, we need not address the timeliness of Complainant's EEO counselor contact.
Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 tends 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), at 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 77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
May 22, 2012
__________________
Date
1 The Agency identified Complainant's race as Asian. On appeal he states he is Latino.
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0120121185
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120121185