Herbert H. Cox, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionOct 20, 1998
01975941 (E.E.O.C. Oct. 20, 1998)

01975941

10-20-1998

Herbert H. Cox, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Herbert H. Cox v. United States Postal Service

01975941

October 20, 1998

Herbert H. Cox, )

Appellant, )

)

v. ) Appeal No. 01975941

) Agency No. 4E-852-1194-94

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

______________________________)

DECISION

The Commission finds the agency committed no reversible legal error in

its June 20, 1997 final decision (FAD), received by appellant on June 23,

1997, dismissing his August 15, 1994 formal EEO complaint, for failure

to state a claim, pursuant to 29 C.F.R. �1614.107(a). Appellant has

presented no arguments in his July 21, 1997 appeal to persuade us to

reach a contrary conclusion.

Although the FAD in this case is not entirely clear,<1> we find, as

a threshold matter, that appellant, a former agency employee who was

removed by the agency effective August 9, 1993, has not challenged on

appeal the FAD's framing of the issues in his complaint, which complaint

alleged the agency took the following actions for prohibited reasons:

(1) on May 31, 1994, the agency denied his EEO representative official

time;

(2) in April and May 1994, false statements were made to his

representative to interfere with union representation and the filing of

grievances;

(3) on April 13, 1994, and May 19, 1994, he was denied the opportunity

to communicate with a union representative regarding a grievance;

(4) in April, May, and on June 19, 1994, his union representative was

denied information for a grievance to be filed on his behalf;

(5) in April, May, and June, appellant was denied the opportunity to

present a grievance on his own behalf;

(6) on June 6, 1994, the agency announced the locking of employee access

doors as a precaution based on the decision of an arbitrator favorable

to the agency regarding appellant's removal;

(7) in May 1994, false statements/omissions to discredit appellant's

allegations of discrimination were contained in agency documents; and

(8) from 1991 to the present, false statements were used in aiding

appellant's adverse action/removal.

We find the gravamen of appellant's complaint to be an impermissible

collateral attack on the agency's decision to remove him. We find that

appellant himself has essentially conceded as much in a letter from him

to the agency, dated February 3, 1996, and purporting to clarify the

issues in the present matter. In that letter, appellant declared in

pertinent part as follows: "It is my wish that all issues comprising

my FCs [formal complaints] be combined into one FC, and a hearing

be granted. All issues are related to my separation from the Postal

Service and should be addressed in their entirety." (Emphasis added.)

In addition, according to his June 28, 1994 request for EEO counseling,

appellant by way of remedy was seeking, in relevant part, reinstatement

to his former position and back pay. We also find appellant's complaint

to be a collateral attack on the arbitrator's decision sustaining his

removal, and not an appeal from that decision.

The Commission's decision in the present matter, however, should

not be construed as holding that a former employee has no standing

to bring an EEO complaint against an agency, which appears to be the

FAD's analysis. See Sternberg v. Department of Defense, EEOC Request

No. 05890976 (January 8, 1990). We simply say that, in the present matter,

and for the reasons we have previously articulated, appellant's complaint

fails to state a claim upon which relief may be predicated.

The FAD is hereby AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0795)

The Commission may, in its discretion, reconsider the decision in this

case if the appellant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. New and material evidence is available that was not readily available

when the previous decision was issued; or

2. The previous decision involved an erroneous interpretation of law,

regulation or material fact, or misapplication of established policy; or

3. The decision is of such exceptional nature as to have substantial

precedential implications.

Requests to reconsider, with supporting arguments or evidence, MUST

BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this

decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive

a timely request to reconsider filed by another party. Any argument in

opposition to the request to reconsider or cross request to reconsider

MUST be submitted to the Commission and to the requesting party

WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request

to reconsider. See 29 C.F.R. �1614.407. All requests and arguments

must bear proof of postmark and 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 filed on the date it is received

by the Commission.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely. If extenuating circumstances

have prevented the timely filing of a request for reconsideration,

a written statement setting forth the circumstances which caused the

delay and 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).

RIGHT TO FILE A CIVIL ACTION (S0993)

It is the position of the Commission that 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.

You should be aware, however, that courts in some jurisdictions have

interpreted the Civil Rights Act of 1991 in a manner suggesting that

a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the

date that you receive this decision. To ensure that your civil action

is considered timely, you are advised to file it WITHIN THIRTY (30)

CALENDAR DAYS from the date that you receive this decision or to consult

an attorney concerning the applicable time period in the jurisdiction

in which your action would be filed. 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 (Z1092)

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:

October 20, 1998

DATE Ronnie Blumenthal, Director

Office of Federal Operations

1In a prior decision, the Commission had ordered the agency to, inter

alia, clarify appellant's complaint. See Cox v. United States Postal

Service, EEOC Appeal No. 01952428 (November 27, 1995).