Omar Hechavarria, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionDec 22, 2003
01A35295_r (E.E.O.C. Dec. 22, 2003)

01A35295_r

12-22-2003

Omar Hechavarria, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Omar Hechavarria v. United States Postal Service

01A35295

December 22, 2003

.

Omar Hechavarria,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A35295

Agency No. 4H-330-0353-03

DECISION

Complainant filed a timely appeal with this Commission from the agency's

decision dated September 3, 2003, 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 bases of national origin and reprisal for prior EEO activity when:

On May 23, 2003, complainant was accused of being involved in a

terrorist act.

The agency dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a)(1)

for failure to state a claim, finding that complainant was not aggrieved

as a result of the alleged incident.

On appeal, complainant states that his regular access to employees for

the purpose of conducting union business has been curtailed by the agency

as a result of the false terrorist accusation.

The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in

relevant part, that an agency shall dismiss a complaint 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,

.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).

In the instant case, we find complainant suffered no loss in wages,

received no discipline or otherwise suffered any adverse employment

action as a result of the alleged discriminatory event.

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). The

proper forum for complainant to raise a claim regarding his authorization

to conduct union business on agency property is with the union. It is

inappropriate to now attempt to use the EEO process to collaterally

attack actions that are properly brought pursuant to the agency's

collective bargaining agreement. We find the agency properly dismissed

the complaint for failure to state a claim.

Accordingly, we AFFIRM the agency's dismissal of the complaint pursuant

to 29 C.F.R. � 1614.107(a)(1), for failure to state a claim.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0701)

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

December 22, 2003

__________________

Date