0120103727
01-25-2011
Carlton B. Sampson, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Capital Metro Area), Agency.
Carlton B. Sampson,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Capital Metro Area),
Agency.
Appeal No. 0120103727
Agency No. 1K-204-0019-10
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated September 13, 2010, dismissing his formal 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
During the period at issue, Complainant was employed as a Mail Handler at the Agency's Southern Maryland Processing and Distribution Center in Capital Heights, Maryland.
On July 6, 2010, Complainant initiated EEO Counselor contact. Informal efforts to resolve his concerns were unsuccessful.
On August 17, 2010, Complainant filed the instant formal complaint. Therein, Complainant alleged that the Agency subjected him to discrimination in reprisal for prior protected activity (union affiliation) when:
he was placed out of the building on May 7-8, 2010, May 25, 2010 and June 25, 2010.
In its September 13, 2010 final decision, the Agency dismissed Complainant's formal complaint for failure to state a claim, pursuant to 29 C.F.R. � 1614.107(a)(1). The Agency stated that Complainant claimed retaliation for union activity, which is not a covered basis. The Agency acknowledged that in his formal complaint form, Complainant checked the race, sex, age and retaliation boxes. The Agency further noted, however, that in the portion of the formal complaint form identified as "Box 16," Complainant stated "all this is due to my union affiliation." The Agency further stated that the instant complaint a collateral attack on the proceedings of another forum.
The Agency also dismissed one of the claims on the alternative grounds of untimely EEO Counselor contact, pursuant to 29 C.F.R. � 1614.107(a)(2). Specifically, the Agency stated that Complainant did not initiate EEO Counselor until approximately sixty days after he was placed out of the building, with respect to the event identified on May 7-8, 2010.
On appeal, Complainant states "I implore the Commission to carefully read ALL my supporting evidence and I reaffirm my position that I have been discriminated and will continue to be if local management is allowed to continue on with their present day practices [emphasis in its original]." In support of his assertions, Complainant submitted a copy of various corresponding letters between Agency management and the union concerning safety and health issues in the workplace.
ANALYSIS AND FINDINGS
Upon review, we find that the Agency properly dismissed the instant complaint for failure to state a claim when it determined that the sole basis raised was reprisal discrimination based on union activity or membership, finding that this basis is not covered under the laws administered by the Commission. The Commission acknowledges, as the Agency has done, that the formal complaint form identifies other potential bases. However, despite this categorization, the Commission determines that a fair reading of the instant complaint form reflects that Complainant intended to allege solely reprisal due to union affiliation (i.e., "all this due to my union affiliation").
Moreover, irrespective of the bases raised, Complainant has not shown he suffered harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. See Diaz v. Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994). Complainant's claim constitutes a collateral attack on the grievance proceeding. The Commission has held that an employee cannot use the EEO complaint process to lodge a collateral attack on another proceeding. See Willis v. Department of Defense, EEOC Request No. 05970596 (July 30, 1998); Kleinman v. United States Postal Service, EEOC Request No. 05940585 (September 22, 1994); Lingad v. United States Postal Service, EEOC Request No. 05930106 (June 25, 1993). The proper forum for Complainant to have raised his challenges to actions which occurred during the grievance proceeding was in that proceeding itself. It is inappropriate to now attempt to use the EEO process to collaterally attack actions which occurred during the grievance process.
Because we affirm the Agency's dismissal of the instant complaint for failure to state a claim, we find it unnecessary to address alternative grounds (i.e. untimely EEO Counselor contact).
Accordingly, the Agency's final decision dismissing the instant complaint for failure to state a clam was proper and 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 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), 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
January 25, 2011
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision was received within five (5) calendar days after it was mailed. I certify that this decision was mailed to the following recipients on the date below:
Carlton B. Sampson
5824 Nystrom St.
New Carrollton, MD 20784
Larry L. Clark
5824 Nystrom St.
New Carrollton, MD 20784
U.S. Postal Service (Capital-Metro)
NEEOISO - Appeals
U.S. Postal Service
PO Box 21979
Tampa, FL 33622-1979
__________________
Date
______________________________
Equal Opportunity Assistant
2
0120103727
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120103727
5
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