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).