01a51819_r
07-28-2005
Eugene A. Barnard, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Eugene A. Barnard v. United States Postal Service
01A51819
July 28, 2005
.
Eugene A. Barnard,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A51819
Agency No. 4-G-760-0009-05
DECISION
Complainant filed a timely appeal with this Commission from a final agency
decision dated December 3, 2004, dismissing his formal EEO 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.
In the instant formal complaint, filed on November 15, 2004, complainant
claimed that the agency subjected him to discrimination and harassment,
on the bases of race, national origin, religion, disability, and in
reprisal for prior EEO activity. Complainant's complaint was comprised
of the following two claims:
On October 7, 2004, complainant received an amended Rehabilitation
Modified Job Offer which did not adequately address his physical
restrictions; and
On November 12, 2004, complainant received a letter from the agency's
Injury Compensation Specialist �demanding� that he complete Form CA-2A
[needed to support his request to the Office of Workers' Compensation
Programs (OWCP) for a change in his work limitations].
In its final decision, the agency dismissed both claims for failure
to state claim, finding that they constitute a collateral attack on
the OWCP procedures. Specifically, the agency determined that both
claims concern complainant's challenge to the suitability of the job
offer, which is a determination made solely by the OWCP. The agency
additionally determined that complainant submitted insufficient evidence
to demonstrate that he had been subjected to a hostile work environment.
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).
The record here reflects that complainant's claims concern the suitability
of the job offer made by the OWCP. The proper forum for complainant
to have raised his challenge is before the OWCP, not the Commission.
It is inappropriate to use the EEO process to collaterally attack the
OWCP procedure in this manner. Moreover, we concur with the agency
that complainant has not presented circumstances that are sufficiently
severe or pervasive so as to give rise to an actionable harassment claim.
See Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March
13, 1997).
Therefore, for the reasons set forth above, we find that the agency
properly dismissed the complaint on the grounds of failure to state a
claim, pursuant to 29 C.F.R. � 1614.107(a)(1). Accordingly, we AFFIRM
the agency's final decision dismissing the instant complaint.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 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 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 (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
July 28, 2005
__________________
Date