01a52580
07-29-2005
Prentis Rucker, Jr., Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Prentis Rucker, Jr. v. United States Postal Service
01A52580
July 29, 2005
.
Prentis Rucker, Jr.,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A52580
Agency No. 4C-440-0273-04
DECISION
Upon review, the Commission finds that complainant's complaint was
properly dismissed for failure to state a claim, pursuant to 29 C.F.R. �
1614.107(a)(1) and for untimely EEO Counselor contact pursuant to 29
C.F.R. � 1614.107(a)(2).
In his complaint, complainant alleged that he was subjected to
discrimination on the bases of race (African-American), religion (Muslim),
color (dark melanin), age (D.O.B. October 10, 1951) and reprisal (zealous
union steward) when:
1. Complainant was the recipient of a barrage of progressive disciplinary
actions beginning October 20, 2003, and culminating in his resignation
on July 6, 2004;
2. Up to November 24, 2004, complainant was not yet paid monies owed to
him for an arbitration award and union settlement dated January 27, 2004;
3. From November 29, 2003 through December 4, 2003, complainant's mail
was tampered with by management; and
4. On or about November 8, 2003, after complainant was placed on
Emergency Placement, management scheduled complainant to return to work
on the day after his father was buried.
In its decision, dated January 13, 2005, the agency dismissed claims 1, 3,
and 4 on the grounds that complainant failed to contact an EEO Counselor
within the 45-day time limitation period and that complainant failed to
present evidence to extend the time period. The agency dismissed claim
2 on the grounds that claim 2 failed to state a claim.
Regarding claims 1, 3, and 4, the record discloses that complainant did
not initiate EEO Counselor contact regarding claims 1, 3, and 4 until
August 23, 2004, which is beyond the 45-day time limitation period.
We find therefore that complainant's contact was untimely. Moreover,
complainant has not presented any arguments or evidence on appeal that
would warrant an extension of the time limit.
Regarding claim 2, the record contains an arbitration award, dated January
27, 2004, which was the outcome of a grievance filed by complainant and
which reflects that complainant was to be provided any pay that was lost
to him. The Commission finds that claim 2 was properly dismissed pursuant
to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim for which there
is a remedy. The Commission has held that an employee cannot use the
EEO complaint process to lodge a collateral attack on another proceeding.
See Kleinman v. United States Postal Service, EEOC Request No. 05940585
(September 22, 1994); Lingad v. United States Postal Service, EEOC Request
No. 05930106 (June 24, 1993). The proper forum where complainant should
have raised claim 2 was within the grievance process.
The agency's dismissal of the complaint 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
July 29, 2005
__________________
Date