01996089
07-06-2000
Randall A. Brannon, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Randall A. Brannon v. United States Postal Service
01996089
July 6, 2000
Randall A. Brannon, )
Complainant, )
)
v. ) Appeal No. 01996089
) Agency No. 4-G-730-0107-99
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
____________________________________)
DECISION
Complainant filed a timely appeal with this Commission from a final
agency decision (FAD) dismissing his complaint of unlawful employment
discrimination in violation of Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. � 2000e et seq.<1> We accept the appeal pursuant
to 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified at 29 C.F.R. �
1614.405).
After unsuccessful EEO counseling, complainant filed a formal complaint on
June 9, 1999, alleging discrimination on the bases of race and sex when
he failed to obtain an award of back-pay in an arbitration proceeding
concerning a grievance he filed in March 1999 after receiving a 14-day
suspension. Complainant stated that three co-workers received a similar
suspension, but nonetheless received a back-pay award in arbitration.
In its FAD, the agency dismissed the complaint for failure to state a
claim, finding that complainant's claim was no more than an impermissible
collateral attack on the arbitration proceeding, and that his recourse,
if any, was in that forum. On appeal, complainant contends that two
agency officials gave false testimony during the arbitration proceeding,
and that as a result, he did not receive an award of back-pay.
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 actions which occurred
during the arbitration proceeding was at that proceeding itself. It is
inappropriate to now attempt to use the EEO process to collaterally
attack actions which occurred during the arbitration process.
Accordingly, we find that complainant has failed to state a claim,
and that the agency properly DISMISSED his complaint. See 64
Fed. Reg. 37,644, 37,656 (1999)(to be codified as 29 C.F.R. �
1614.107(a)(1)). We AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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:
July 6, 2000
____________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to
all federal sector EEO complaints pending at any stage in the
administrative process. Consequently, the Commission will apply the
revised regulations found at 64 Fed. Reg. 37,644 (1999), where applicable,
in deciding the present appeal. The regulations, as amended, may also be
found at the Commission's website at www.eeoc.gov.