01A02721
03-28-2001
Ezra R. Safdie, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Ezra R. Safdie v. Department of Veterans Affairs
01A02721
March 28, 2001
.
Ezra R. Safdie,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A02721
Agency No. 99-3675
DECISION
Complainant filed a timely appeal with this Commission from an agency
decision dated January 14, 2000, 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. In his
complaint, complainant alleged that he was subjected to discrimination
on the basis of religion (Jewish) when:
On or about May 10, 1999 and June 7, 1999, per complainant's Freedom of
Information Act (FOIA) request, complainant was provided with a document
compiled by the union regarding the history of grievances, unfair labor
practices, and EEO complaints filed at the James A. Haley Medical Center
in Tampa;
Complainant has suffered poor treatment and a lack of support from union
officials over the years, by failing to attend scheduled meetings with
complainant, and/or disrupting meetings when present;
On various occasions including February 29, 1997, March 16, 1996, March
11, 1996, and November 1996, complainant's subordinate employees made
derogatory remarks about Jewish people and their beliefs; and
The agency improperly processed complainant's complaints, particularly
by designating the facility director as the responsible official, rather
than union officials.
In its final decision, the agency dismissed the 1999 claims for failure
to state a claim. The agency found that the isolated remarks did not
render complainant aggrieved, and that complaints concerning union
activity did not state a cognizable EEO claim.<1> Additionally, the
agency found that all other claims besides those incidents from May 10,
1999 and June 7, 1999 were not timely raised with an EEO Counselor.
Alternatively, the agency determined that the complaint was moot because
no relief could be granted to complainant. Complainant asked the agency
to require union officials to attend meetings and conduct themselves in
a respectful and professional manner; the agency contends that it cannot
control legitimate union activities, nor order union representatives to
take the actions requested.
On appeal, complainant supplied volumes of information concerning his
relationship with union officials, particularly the local Vice President.
He argues that 30% of all union grievances were filed against him,
even though he only supervised 7% of all union employees; none have
found any wrongdoing by complainant. Further, complainant notes that
seventeen of forty-four letters from the union to the director concerned
him; complainant contends that these statistics proved a pattern of
discriminatory treatment. According to complainant, the union vice
president was either present, or representing employees when they made
anti-Semitic remarks such as, �you have to be a member of the beanie hat
club in order to be fairly treated,� �I don't want you to report this to
B'nai B'rith,� �I don't want anything with pork in it . . . I'm changing
my religion . . . it seems to be the thing to do around here,� and �look
at and start disassembling the Jewish connection.� Complainant argues
that although he brought the union's anti-Semitism to management's
attention, no action was taken against the union. He takes issue
with statements made about him in MSPB appeals, union grievances, and
EEO complaints filed against him. Further, complainant contends that
the union has been harassing him since 1996, and �maligning Jewish�
supervisors in written memos.
Complainant also took issue with the agency's processing of his complaint.
He contends that the agency refused to allow him to file �spin-off�
complaints concerning the processing of the present complaint. He also
contends that the agency failed to comply with applicable timelines in
the present case, and improperly listed management as the responsible
official in his complaint rather than union officials.
EEOC Regulations require the dismissal of complaints that fail to
state a claim. See 29 C.F.R. � 1614.107(a)(1). To state a claim,
complainant must allege present harm inflicted on the basis of race, sex,
religion, national origin, age, disability, or prior protected activity.
See Diaz v. Department of the Air Force, EEOC Request No. 05931049
(April 21, 1994).
EEO complaints alleging harm from actions taken in other processes, such
as in MSPB or grievance proceedings, are collateral attacks on those
processes. The Commission has held that an employee cannot use the EEO
complaint process to lodge a collateral attack on another proceeding.
See Wills v. Department of Defense , EEOC Request No. 05970596 (July
30, 1998); Kleinman v. United States Postal Service, EEOC Request No.
05940585 (Sept. 22, 1994); Lingad v. United States Postal Service, EEOC
Request No. 05930106 (June 25, 1993). Such attacks should be raised
in other forums, and must be dismissed for failure to state a claim.
In the present complaint, the vast majority of all claims concerning
mistreatment from the union occurred in the course of grievance or
MSPB proceedings against complainant. Complainant also identifies four
inflammatory statements concerning his religion. The record reveals
that these four statements occurred between 1996 and the present but
were made by employees while represented by the union vice president.
Complainant may not use a separate EEO complaint to challenge union
actions from other disputes. These matters fail to state a claim. Many
of complainant's other claims concern the union's use of EEO complaints,
or threats of filing complaints against complainant. There is no right
to file a discrimination complaint concerning actions an employee took
in the course of another EEO complaint. See Safdie v. Department of
Veterans Affairs, EEOC Request No. 05970058 (July 17, 1998).
Complainant also refers to many other documents and statements he
considered derogatory. However, complainant never explained what
was in any of these documents, nor provided a copy of them. The four
incidents disparaging complainant's religion occurred over the course
of four years. These matters were not severe or pervasive enough to
render complainant aggrieved. See Cobb v. Department of the Treasury,
EEOC Request No. 05970077 (March 13, 1997). Accordingly, the Commission
finds that these matters also fail to state a claim.
Complainant argues he was harmed when the agency would not allow him
to file spin-off complaints concerning the processing of his prior
complaints. Complainant has suffered no harm from the agency's failure;
his complaints, if filed, would have been dismissed. See 29 C.F.R. �
1614.107(a)(8) (providing for dismissal of complaints alleging harm
from the processing of prior complaints). The agency properly forwarded
complainant's other processing concerns to the official responsible for
complaints processing.
CONCLUSION
Accordingly, the agency's dismissal is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
March 28, 2001
__________________
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 complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1The agency noted that unfair labor practice concerns should be directed
to the Federal Labor Relations Authority.