0120093014
10-30-2009
Alfred B. Charles, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Alfred B. Charles,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120093014
Agency No. 1A111002409
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated June 29, 2009, 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., Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act
of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
In his complaint, complainant alleged that he was subjected to
discrimination on the bases of race (Black), national origin (Guyana), sex
(male), color (dark brown), disability (neck, back, right arm), age (DOB:
February 21, 1954), and reprisal for prior protected EEO activity when:
On January 29, 2009 and February 10, 2009, management personnel
. . . facilitated/caused a sequence of events which subsequently resulted
in [complainant's] separation from the [agency] because of lies,
omission of facts, hiding of evidence, deal making, misquotation and
misinterpretation of facts which were detrimental [to complainant's] case.
[Complainant] was separated on April 2, 2009.
The agency defined complainant's complaint as two separate claims: (1)
on April 2, 2009, the Arbitrator denied his grievance for a Notice of
Removal complainant received on July 16, 20081; and (2) complainant was
separated on April 2, 2009. The agency dismissed claim (1) pursuant to
29 C.F.R. � 1614.107(a)(1) for failure to state a claim. The agency
determined that complainant attempted to launch a collateral attack
against the grievance process. Further, the agency dismissed claim
(2) pursuant to 29 C.F.R. � 1614.107(a)(1) for stating the same claim
in a prior EEO complaint. The agency noted that the Notice of Removal
received in July 2008 is the subject of another EEO complaint, namely
Agency No. 1A-111-0027-08, which is pending before an EEOC Administrative
Judge (AJ).
Complainant appealed the agency's dismissal. Complainant asserted that
he was in fact harmed in that he was separated from the agency effective
April 2, 2009. Complainant states that he has no other forum to raise his
dissatisfaction with the arbitration process. Complainant, in addition,
argues the merits of the Notice of Removal. Complainant claims that the
information in the instant matter is "new information" and involves new
individuals as compared to the case currently pending before the EEOC AJ.
Therefore, complainant asserts that the pending case needs to be expanded
to include the new information and new allegations.
Claim (1)
Complainant clearly stated in his complaint that management officials
took actions against him on January 29, 2009 and February 10, 2009.
The record indicates that these are the same dates of complainant's
grievance hearing. As such, we find that complainant has asserted that
he was discriminated against by management's actions during the grievance
process.
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. 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); Lingad v. United States Postal Service,
EEOC Request No. 05930106 (June 25, 1993). The proper forum for
complainant to have raised his challenges to actions which occurred
during the arbitration proceeding was at that proceeding itself. It is
inappropriate to now attempt to use the EEO process to collaterally
attack actions which occurred during the arbitration process.
Claim (2)
In claim (2), complainant alleged he was subjected to discrimination
when he was separated. The record indicates that the Notice of Removal
was issued in July 2008; however complainant was not separated until
April 2009. Complainant filed a formal complaint regarding the
removal action which is the subject of Agency No. 1A-111-0027-08.
This complaint is currently pending before an EEOC AJ, namely EEOC
Hearing No. 520-2008-00072X. The regulation set forth at 29 C.F.R. �
1614.107(a)(1) provides that the agency shall dismiss a complaint that
states the same claim that is pending before or has been decided by the
agency or Commission. It has long been established that "identical"
does not mean "similar." The Commission has consistently held that
in order for a complaint to be dismissed as identical, the elements of
the complaint must be identical to the elements of the prior complaint
in time, place, incident, and parties. See Jackson v. Department of
the Air Force, EEOC Appeal No 01955890 (April 5, 1996) rev'd on other
grounds EEOC Request No. 05960524 (April 24, 1997).
Upon review of the record, we find that complainant has stated the same
claim as one pending a hearing before an EEOC AJ. Regardless of the
effective date, complainant's separation in April 2009 was the execution
of the Notice of Removal from July 2008. Accordingly, the instant
complaint states the same claim as complainant's prior EEO complaint.
Complainant asserted on appeal that the scope of the prior complaint
needs to be expanded to include the "new information" he has discovered.
We note that complainant should raise his arguments and requests with
the EEOC AJ in conjunction with EEOC Hearing No. 520-2008-00072X.
Based on the record, we find that the agency correctly dismissed the
instant complaint as stating the same claim as complainant's prior
EEO complaint.
Accordingly, we AFFIRM the agency's final decision dismissing the
complaint at hand.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (S0408)
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 (Z1008)
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
October 30, 2009
__________________
Date
1 The record indicates that complainant received a Notice of Removal
on July 16, 2008, for providing inaccurate information on an Office of
Workers Compensation Program form.
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0120093014
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120093014