01993152
05-11-2000
David L. Bupp, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
David L. Bupp, )
Complainant, )
)
v. ) Appeal No. 01993152
) Agency No. 1D-234-0019-99
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
____________________________________)
DECISION
Upon review, the Commission finds that the complainant's complaint was
properly dismissed pursuant to 64 Fed. Reg. 37,644, 37,656 (1999)(to
be codified and hereinafter referred to as EEOC Regulation 29 C.F.R. �
1614.107(a)(1)), for stating the same claim that is pending before or
has been decided by the agency or the Commission.<1>
In its February 11, 1999 final agency decision dismissing the complaint
for stating the same claim that was previously decided by the agency,
the agency stated that the matter raised in the subject complaint was
identical to and arose from the same transaction raised in the complaints
filed in Agency Nos. 1D-234-1022-95 and 1D-234-1037-95.<2> The agency
noted that in those two complaints, the complainant alleged that his
requests for a change of craft/reassignments to the mail handlers craft
were denied on February 18, 1995 and July 24, 1995.
Commission regulations provide for the dismissal of a complaint, or
portion of a complaint, that states the same claim that has been decided
by the agency or the Commission. See 29 C.F.R. � 1614.107(a)(1).
In the present complaint, the complainant is alleging that he was
discriminated against on the basis of race (Caucasian) when he was denied
a transfer request in February 1995.<3> The complaint does not reflect
any other transfer request dates.
The record contains documents from Agency Nos. 1D-234-1022-95 and
1D-234-1037-95. In Agency No. 1D-234-1022-95, the complainant alleged
that he was discriminated against when on February 18, 1995, his request
to transfer from an unassigned regular in automation to a part-time,
flexible mail handler was denied. In Agency No. 1D-234-1037-95,
the complainant alleged that he was discriminated against on July 24,
1995, when his request was again denied. The record further reveals
that the two prior complaints were consolidated for hearing before an
EEOC Administrative Judge (AJ) on May 23, 1996, and the AJ issued a
recommended decision on November 4, 1996, finding no discrimination.
The agency then issued a final agency decision on the consolidated
complaints which the complainant appealed to the Commission. The appeal
was docketed as EEOC Appeal No. 01972472. The Commission affirmed the
agency's final decision.
Based on the foregoing, the Commission finds that the agency's decision
dismissing the complaint for stating the same claim was proper. What the
complainant is attempting to do in the present complaint is re-litigate
an issue that was previously decided in his prior complaints. See Means
v. Department of Labor, EEOC Request No. 05950543 (September 5, 1997).
Finally, to the extent that the complainant is asserting in his complaint
that information provided by the agency in Agency Nos. 1D-234-1022-95 and
1D-234-1037-95 was false and misleading and is disputing evidence provided
at the hearing before the AJ regarding the consolidated complaints, such
allegations constitute a collateral attack on another forum's proceeding
and, as such, fail 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. Kleinman v. U.S. Postal Service, EEOC Request
No. 05940585 (September 22, 1994); Lingad v. U.S. Postal Service, EEOC
Request No. 05930106 (June 24, 1993). A collateral attack involves a
challenge to another forum's proceeding, such as the grievance process,
the EEO process in a separate case, and the unemployment compensation
process. See Story v. U.S. Postal Service, EEOC Request No. 05960314
(October 18, 1996). The proper forum for the complainant to have raised
challenges to agency actions which occurred was during the processing of
and the hearing on the underlying complaints in Agency Nos. 1D-234-1022-95
and 1D-234-1037-95.
Based on the foregoing, the agency's final decision dismissing
complainant's complaint for stating the same claim as a prior complaint
is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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:
May 11, 2000
________________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date 1On November 9, 1999, revised regulations governing the EEOC's
federal sector complaint process went into effect. These regulations
apply to all federal sector EEO complaints pending at any stage in
the administrative process. Consequently, the Commission will apply
the revised regulations found at 64 Fed. Reg. 37,644 (1999), where
applicable, in deciding the present appeal. The regulations, as amended,
may also be found at the Commission's website at www.eeoc.gov.
2The agency dismissed the complaint alternatively on the grounds of
failure to contact an EEO Counselor in a timely manner.
3The agency identified a second issue in the complaint as whether
the complainant was discriminated against when on November 6, 1998,
he became aware that a White male clerk was to assume mail handler's
duties on November 7, 1998, and a male Filipino was to assume a part-time
flexible position on November 8, 1998. The Commission finds that the
second issue was improperly identified as a viable issue and appears to
be background information and evidence in support of the complainant's
claim that he was discriminated against. Moreover, there is no evidence
in the record from which the Commission can draw any inference that the
complainant requested a transfer and that the transfers were given to
the White male or the Filipino.