0120180742
03-30-2018
Herb F,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Headquarters), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Herb F,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Headquarters),
Agency.
Appeal No. 0120180742
Agency No. 6X000004817
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision (Dismissal) dated November 28, 2017, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was a former employee of the Agency who had not worked for the Agency for 32 years. On November 4, 2017, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (African-American), sex (male), disability (unspecified back disability), age (68), and reprisal for prior protected EEO activity under an EEO statute that was unspecified in the record. Complainant's allegations from his formal complaint are generally incoherent but appear to include, in part, an appeal of a prior Agency decision under Agency No. 4K210006806. The Agency appears to have focused on Complainant's claims from his informal complaint, a more coherent document, and determined that the claims should be characterized as follows:
1. Since July 2016, through August 17, 2017, Complainant's request for information, phone calls to Injury Compensation, and letters to the Postmaster General regarding his reasonable accommodation request and restoration to the Agency have not been answered;
2. On unspecified date(s), the Department of Labor, Office of Workers' Compensation Programs (OWCP), has requested that Complainant submit to functional capacity evaluations2.
The Agency dismissed claim 1 for stating the same claim as a previously filed claim, and claim 2 for constituting a collateral attack on the OWCP forum.
ANALYSIS AND FINDINGS
To the extent Complainant is appealing Agency No. 4K210006806, we note that Complainant already filed an appeal of the Agency's final order on January 30, 2008, and the Commission issued its decision on the matter on April 7, 2008. See Complainant v United States Postal Service, EEOC Appeal No. 0120081410, RTR denied EEOC Request No. 0520080489 (June 6, 2008). Complainant's appeal of the 2008 final order is therefore dismissed.
With regards to the claims identified by the Agency, the Dismissal noted that Complainant has made the same allegations of denial of reasonable accommodation and denial of restoration rights in multiple prior complaints and that the Commission previously found that:
Complainant is no stranger to this Commission's appeals process. The record demonstrates that for almost a decade Complainant has attempted to obtain reinstatement at the Agency after he resigned due to medical and personal reasons. Complainant has moved various times during the course of the last 10 years, and has asserted reinstatement rights in multiple cities. See Agency Case Nos. 1K-211-0122-98; 1K-211-0211-98, 4A-006-0087-00; and 4D-290-0068-01. Complainant should be advised that subsequent requests for reinstatement do not create new cause of action. When a case is brought that arises from a previously adjudicated transaction, the Commission must dismiss the case. 29 C.F.R. 1614.107(a) (1); (citation omitted) The Commission thus finds that Complainant cannot prevail on this issue because it is res judicata.
Complainant v. United State Postal Service, Appeal No. 01A40923 (June 8, 2004)
The Agency further submitted copies of the Formal complaints for Agency Nos. 4K210003416 (filed January 16, 2016) and 4K210007515 (filed August 29, 2015), neither of which Complainant appears to have appealed to this Commission to date, showing Complainant filed claims that included allegations of denial of reasonable accommodation and denial of reinstatement in each case. We therefore find the Agency correctly dismissed claim 1 pursuant to 29 C.F.R. � 1614(a)(1) for stating the same claims as multiple previously-filed claims.
With regards to claim 2, the Commission has held that a Complainant 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 raise his challenges to OWCP's request that Complainant submit to functional capacity evaluations is generally within that proceeding itself. Hence, we find that Complainant's allegation does not state a claim.
CONCLUSION
The Dismissal is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
March 30, 2018
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
2 The informal complaint makes no mention of any appeal of Agency No. 4K210006806.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120180742
4
0120180742