0120101639
08-06-2010
Theodore T. Daniels, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Northeast Area), Agency.
Theodore T. Daniels,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Northeast Area),
Agency.
Appeal No. 0120101639
Agency No. 1B-012-0021-09
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated February 4, 2010, 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. For the following reasons, the Commission AFFIRMS the Agency's final decision.
BACKGROUND
In his complaint, Complainant alleged that the Agency subjected him to discrimination on the bases of race (Black) and in reprisal for prior protected EEO activity when in September 2009:
1. Complainant has been denied career advancement due to erroneous discipline not being removed from the enterprise Resource Management System (eRMS), and
2. Complainant has been accused of not reporting to work on time and is not allowed to utilize automatic clock rings.
The Agency dismissed issue (1), pursuant to 29 C.F.R. � 1614.107(a)(1), for failure to state a claim. The Agency noted that Complainant is claiming that management is refusing to remove discipline as agreed to in a settlement reached at mediation in 2007. The Agency states that issue (1) involves a collateral attack on the processing of Complainant's prior EEO complaint. The Agency dismissed issue (2) for failure to state a claim. Specifically, the Agency stated that Complainant failed to show that he was denied any entitlement in relation to a term, condition, or privilege of employment and he was not issued any discipline.
On appeal, Complainant states that his chances for career advancement are harmed since the discipline is erroneously being maintained in his file. Complainant states the Agency breached the settlement he previously made with the Agency. With regard to the clock rings, Complainant states he was taken off automatic clock rings and said he has had "pay issues" since the removal from automatic clock rings. Complainant also states he suffers "embarrassment of being the only [B]lack supervisor on the floor who would have to clock with the craft employees." Complainant also states that in April 2010, two of his peers received their NPA rating and were given a rate increase while he did not receive a raise. Complainant supplies a copy of his rating for the relevant period.
ANALYSIS AND FINDINGS
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 (September 22, 1994). The record reveals Complainant previously entered into a settlement in December 2007, which stated the Agency would remove a proposed Letter of Warning after six months if there are no further incidents of "failure to call in." Complaint File at 42. In his complaint, Complainant alleges that the Agency failed to remove the discipline in accordance with the 2007 settlement. Complaint File at 10. The proper forum for Complainant to have raised his challenges to actions which occurred during the previous proceeding was through that proceeding itself. It is inappropriate to now attempt to use the EEO process to collaterally attack actions which occurred during the previous process. We note Complainant does not allege that he applied for and was denied a promotion. Upon review, we find the Agency properly dismissed issue (1), for failure to state a claim.
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).
With regard to issue (2), Complainant alleges that he was removed from using automatic clock rings and as a result has had issues with his pay. We find Complainant has failed to show that the removal from using the automatic clock ring was sufficiently severe or pervasive to constitute harassment. Moreover, we note Complainant does not identify any specific instances were he was denied pay as a result of his removal from using automatic clock rings. Upon review, we find Complainant failed to show that he has suffered a harm or loss to a term, condition, or privilege of employment for which there is a remedy.
Finally, to the extent Complainant is attempting to raise concerns wit his NPA rating and subsequent failure to receive a raise in April 2010, we find these issues are beyond the scope of the subject appeal.
CONCLUSION
The Agency's decision dismissing the 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 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
August 6, 2010
__________________
Date
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0120101639
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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