0120131976
08-22-2013
Wesley Owens-Bey, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Headquarters), Agency.
Wesley Owens-Bey,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Headquarters),
Agency.
Appeal No. 0120131976
Agency No. 6X000000613
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated March 12, 2013, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Mail Handler at the Agency's P&DC facility in Palatine, Illinois.
On February 5, 2013, Complainant filed a formal EEO complaint alleging that the Agency subjected him to discrimination on the bases of race/national origin (Asiatic Noble Moor), religion (Islam), and color (olive) when: (1) on December 6, 2012, he was unable to change his racial designation listed in his Official Personnel Folder; and (2) on an unspecified date, the Agency would not process his revised Internal Revenue Service Form W-4 changing his tax status to that of an exempt indigenous citizen, resulting in the Agency continuing to take taxes from his paycheck.
The Agency dismissed the complaint, pursuant to 29 C.F.R. � 1614.107(a)(1), for failure to state a claim under the EEO complaints process. The Agency noted that there was no category for Complainant's specific racial self-identification within its demographic reporting procedures which utilize the categories prescribed by the federal government. The Agency also noted that the tax issue needed to be resolved with the Internal Revenue Service (IRS) rather than through the EEO process, because employers must hold taxes unless informed otherwise by the IRS.
The instant appeal followed. In his lengthy appeals statement, Complainant basically argues that people of his race should not be subject to taxation because they are not "chattel property" and that he is "subject neither to Color of law nor Color of authority."
ANALYSIS AND FINDINGS
The Agency properly dismissed claims (1) and (2) for failure to state a claim, finding that the claims constitute a collateral attack on the other processes and were not suitable for adjudication in the EEO complaints process. A claim that can be characterized as a collateral attack, by definition, involves a challenge to another forum's proceeding, such as the grievance process, the unemployment compensation process, or the workers' compensation process. See, e.g., Fisher v. Dep't of Defense, EEOC Request No. 05931059 (July 15, 1994) (challenge to agency's appeal within the workers' compensation process fails to state a claim as an EEO complaint); Lingad v. United States Postal Service, EEOC Request No. 05930106 (June 23, 1994) (challenge to evidentiary ruling in grievance process fails to state a claim as an EEO complaint).
In the instant case, Complainant appears to assert that because his race is not properly identified, he must pay taxes. We agree with the Agency that such matters must be raised with the Internal Revenue Service, not the EEO complaints process. The Commission's regulations do not confer it with the authority to decide tax matters. As to the identification of his race, it is undisputed that Complainant was informed that he could change his race designation from Black (which he identified when he started his employment) to any of the government-approved categories that most closely resemble or were similar to his race. These categories were promulgated through the federal regulatory process, and Complainant needs to address his concerns with the category designations within that process.
The Commission finds that the complaint fails to state a claim under the EEOC regulations because Complainant failed to allege that he suffered harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. See Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (April 21, 1994).
Accordingly, the Agency's final decision dismissing Complainant's 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 22, 2013
__________________
Date
2
0120131976
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120131976