0120092923
11-27-2009
Elbert Hicks, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Elbert Hicks,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120092923
Agency No. 4K-230-0047-09
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision dated March 16, 2009, dismissing his formal 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 et seq.
Complainant is a former letter carrier for the agency. In a formal
complaint dated June 10, 2009, complainant claimed that he was subjected
to unlawful employment discrimination on the bases of disability and in
reprisal for prior protected EEO activity.
On March 16, 2009, the agency issued the instant final decision. Therein,
the agency determined that complainant's formal complaint was comprised
of the following two claims:
1. The agency continues to deny complainant the opportunity for
re-employment; and
2. On November 24, 2008, complainant received a copy of the
U.S. Department of Labor Employees' Compensation Appeals Board's form
addressing his request for restoration and reimbursement of loss of
wages and income from the agency.
In its decision, the agency dismissed the formal complaint pursuant to 29
C.F.R. � 1614.107(a)(1) and 29 C.F.R. � 1614.107(a)(3) the agency stated
that the present complaint states the same claims that were raised by
complainant in previous EEO complaints and in a civil action decided by
the U.S. District Court, Northern District of Florida.
EEOC Regulation 29 C.F.R. � 1614.107(a)(1) provides that the agency
shall dismiss an entire complaint (1) that states the same claim that
is pending before or has been decided by the agency or Commission
EEOC Regulation 29 C.F.R. � 1614.107(a)(3) provides that the agency
shall dismiss a complaint that is the basis of a civil action decided
by a U.S. District Court in which the complainant was a party.
Regarding claim (1), after careful review of the record, the Commission
determines that the issue of complainant's re-employment with the
agency is identical to prior EEO complaints and was appropriately
dismissed by the agency for that reason. The Commission has previously
addressed complainant's re-employment claim on multiple occasions,
noting the frequency of his complaints and reminding complainant that
subsequent requests for reinstatement do not create new causes of action.
The Commission most recently addressed this matter when affirming
the agency's final decision to dismiss a prior formal complaint because
complainant had filed a civil action on November 2, 2004, in the Northern
District of Florida alleging that the agency discriminated against
him when it failed to reinstate him. Hicks v. USPS, EEOC Appeal No.
0120081410 (April 7, 2008); request to reconsider denied, Hicks v. USPS,
EEOC Request No. 0520080489 (June 6, 2008).
Regarding claim (2), the Commission determines that it does not address
a personal loss or harm regarding a term, condition, or privilege of
complainant's employment. Moreover, to the extent that it address a
determination by the Office of Workers Compensation, , 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 that occurred during the worker's compensation
proceeding was at that proceeding itself.
Accordingly, the agency's final decision dismissing complainant's
complaint is AFFIRMED.
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
November 27, 2009___
Date
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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