James A. Burns, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionOct 8, 1999
01990745 (E.E.O.C. Oct. 8, 1999)

01990745

10-08-1999

James A. Burns, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


James A. Burns, )

Appellant, )

)

v. )

) Appeal No. 01990745

William J. Henderson, ) Agency No. HO-0199-98

Postmaster General, )

United States Postal Service, )

Agency. )

______________________________)

DECISION

On November 2, 1998, appellant filed a timely appeal with this Commission

from a final agency decision (FAD), dated October 19, 1998, dismissing his

complaint for failure to state a claim and untimely counselor contact.

Accordingly, the Commission accepts the appeal in accordance with EEOC

Order No. 960, as amended.

On May 5, 1998 appellant contacted the EEO office regarding allegations

of discrimination based on race (Caucasian), age (d.o.b. September 6,

1944), and retaliation. Specifically, appellant alleged that he was

discriminated against when: on May 4, 1998, he received a letter denying

his 650 appeal regarding his termination.

The agency dismissed appellant's complaint pursuant to 29

C.F.R. �1614.107(a) and (b). The FAD indicated that the complaint fails

to make a claim of harm or loss that can be remedied under EEO laws,

and is an impermissible collateral attack on 650 appeal proceedings.

Further, the agency determined that appellant's termination was effective

on February 16, 1996 and therefore his May 5, 1998 counselor contact was

well beyond the 45 day time limitation. The FAD stated that appellant's

use of the EEO process, to address his dissatisfaction with his 650

appeal, is an abuse of process.

On appeal, appellant indicates that the �650 appeal process is a broken

process and in need of repair.� He argues that his complaint should be

addressed by the EEOC because the AJ at the MSPB hearing did not want

to handle his EEO complaints. In addition, appellant contends that he

is the subject of a �conspiracy� by the agency.

Based on a review of the record, we find that the agency properly

dismissed appellant's complaint for failure to state a claim.

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. USPS, EEOC Request No. 05940585 (September 22, 1994);

Lingad v. USPS, EEOC Request No. 05930106 (June 24, 1993). The proper

forum for appellant to have raised his challenges to actions which

occurred during the grievance process was within the process itself.

It is inappropriate to now attempt to use the EEO process to collaterally

attack actions which occurred during the grievance process. Because of

our disposition we do not consider whether the complaint was properly

dismissed on other grounds.

Accordingly, the agency's decision dismissing appellant's complaint

is 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. In the alternative, you may file a

civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date

you filed your complaint with the agency, or filed your appeal with the

Commission. 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. 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 8, 1999

__________________________________

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations