0120064958
02-08-2007
Philip B. Halloran, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Philip B. Halloran,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01200649581
Agency No. 1B-021-0020-06
DECISION
Complainant filed a timely appeal with this Commission from the
agency's decision dated August 15, 2006, dismissing his complaint of
unlawful employment discrimination in violation of the Section 501 of
the Rehabilitation Act of 1973, 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. In his complaint, complainant alleged that he was
subjected to discrimination based on disability and age (born in 1944)
when:
1. after incurring a work-related injury on May 2, 2006, management failed
to correctly and timely process his claim for workers' compensation, and
2. his July 26, 2006 Alternative Dispute Resolution (ADR) mediation
session was cancelled.
The agency dismissed claim 1 for failure to state a claim. 29 C.F.R. �
1614.107(a)(1). 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. 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 have raised his challenges to the action complained of
in claim 1 is with the U.S. Department of Labor, Office of Workers'
Compensation Programs.
The FAD dismissed claim 2 on the grounds that such a claim is not
actionable. EEOC Regulation 29 C.F.R. � 1614.107(a)(8) provides that
an agency must dismiss a claim that alleges dissatisfaction with the
processing of a previously filed complaint. Claim 2 falls within the
ambit of this regulation.
Accordingly, the FAD properly dismissed complainant's complaint and
is affirmed.
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
February 8, 2007
__________________
Date
1 The Commission's September 7, 2006, letters to the parties acknowledging
the appeal identified it as docket number 01A64958. Due to changes in
our computerized records tracking system, the appeal docket number has
been restyled to 0120064958.
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0120064948
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120064958