01990731
08-24-1999
Michael E. Cooke, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Michael E. Cooke v. United States Postal Service
01990731
August 24, 1999
Michael E. Cooke, )
Appellant, )
)
v. ) Appeal No. 01990731
) Agency No. 4D-400-1042-96
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
Appellant filed an appeal with this Commission from a final decision of
the agency 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., Section 501 of the Rehabilitation Act of
1973, as amended, 29 U.S.C. �791 et seq., and the Age Discrimination in
Employment Act of 1967, as amended, 29 U.S.C. �621 et seq. The final
agency decision was issued on September 24, 1998. The appeal was
postmarked November 2, 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.<1>
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed appellant's
complaint on the grounds of failure to state a claim.
BACKGROUND
Appellant initiated contact with an EEO Counselor on March 8, 1996.
On June 7, 1997, appellant filed a formal EEO complaint wherein he alleged
that he was discriminated against on the bases of his sex (male), age
(48), physical disability (hip injury), and in reprisal for his previous
EEO activity when:
1. On February 21, 1996, he received a letter dated February 2, 1996,
from the State Union Steward stating his application for a local Steward
position could not be accepted.
2. In a letter dated February 5, 1996, from the State Union Steward,
it was stated that appellant's check for payment of union dues was lost
and not deposited.
3. The union did not process appellant's grievance dated January 18,
1996, to the Step 3 level.
4. On February 16, 1996, the agency denied appellant's Step 2 grievance,
thereby supporting the agency's decision not to allow appellant to work
more than eight hours in a limited duty assignment when the regular rural
carrier was off on vacation or sick time during the period of May 29,
1995 through January 17, 1996.
5. The agency and union failed to correct a personnel action, after
the Office of Workers' Compensation reversed their decision.
In its final decision, the agency dismissed appellant's complaint on
the grounds of failure to state a claim. The agency determined that
appellant failed to provide any evidence that he suffered a personal
loss or harm with respect to a term, condition, or privilege of his
employment as a result of the alleged actions. Further, the agency
stated that to the extent appellant's complaint is collateral to his
grievance, then it is not a matter for the Commission's intervention.
Thereafter, appellant filed the instant appeal.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.107(a) provides, in relevant part, that
an agency shall dismiss a complaint, or portion thereof, that fails to
state a claim. 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,
sex, 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 (April 21, 1994).
Appellant alleged in allegations 1-3 of his complaint that he was
discriminated against when (1) his application for the local Union Steward
position was rejected by the State Union Steward; (2) he was advised by
the State Union Steward that his check for payment of his union dues was
allegedly lost and not deposited; and (3) the union did not process his
grievance dated January 18, 1996, to the Step 3 level. We find that
each of these allegations involve a claim that the union, and not the
agency, discriminated against appellant. Therefore, allegations 1-3
fail to state a claim as appellant has not been adversely affected by the
agency with regard to a term, condition, or privilege of his employment.
With regard to allegation 4, we find that this allegation also fails
to state a claim. Appellant is attempting to collaterally attack the
result of a Step 2 grievance decision. The Commission has held that
an employee cannot use the EEO complaint process to lodge a collateral
attack on another proceeding. 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). Accordingly,
the agency's dismissal of allegations 1-4 of appellant's complaint on
the grounds of failure to state a claim was proper and is AFFIRMED.
With regard to allegation 5, we note that appellant is alleging that
the agency and the union failed to correct a personnel action after the
Office of Workers' Compensation reversed their decision. The portion
of the allegation that alleges discrimination by the union was properly
dismissed because it does not claim that the agency caused appellant
to suffer harm with regard to a term, condition, or privilege of his
employment. However, with regard to that portion of the allegation
claiming discrimination by the agency, we are unable to determine the
exact nature of the personnel action at issue. Therefore, we find that
the issue must be clarified. Accordingly, the agency's decision to
dismiss allegation 5 of appellant's complaint on the grounds of failure
to state a claim is AFFIRMED insofar as the allegation pertains to the
union, but is VACATED as to that portion of the allegation that claims
discrimination by the agency. This portion of allegation 5 is REMANDED
for further processing in accordance with the Order below.
ORDER
The agency is ORDERED to take the following actions:
Within fifteen (15) calendar days of the date this decision becomes final,
send appellant a written request to clarify allegation 5 as it relates to
the agency's alleged failure to correct a personnel action. Specifically,
appellant shall be requested to identify the precise personnel action in
question, the date of incident, the officials involved, and any other
relevant information regarding this allegations. Appellant shall be
given fifteen (15) calendar days from the date of receipt of the agency's
request within which to respond.
Thereafter, the agency shall issue a notice of processing or final agency
decision with appropriate appeal rights with regard to the remanded
portion of allegation 5 within thirty (30) calendar days of its receipt
of appellant's response.
A copy of the agency's letter seeking clarification of the remanded
portion of allegation 5 and the notice of processing or final agency
decision must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant also has the right
to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant has the right to file a civil action on the underlying
complaint in accordance with the paragraph below entitled "Right to File
A Civil Action." 29 C.F.R. �� 1614.408 and 1614.409. A civil action for
enforcement or a civil action on the underlying complaint is subject to
the deadline stated in 42 U.S.C. �2000e-16(c) (Supp. V 1993). If the
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
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 (T0993)
This decision affirms the agency's final decision in part, but it also
requires the agency to continue its administrative processing of a
portion of your complaint. You have the right to file a civil action
in an appropriate United States District Court on both that portion of
your complaint which the Commission has affirmed AND that portion of the
complaint which has been remanded for continued administrative processing.
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:
August 24, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
1The record does not establish when appellant received the final agency
decision. Absent evidence to the contrary, we find that the instant
appeal was timely filed.