0120082202
09-11-2009
Roberto Ifill, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Capital-Metro), Agency.
Roberto Ifill,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Capital-Metro),
Agency.
Appeal No. 0120082202
Hearing No. 570-2008-00434X
Agency No. 1K-221-0011-07
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated June 21, 2007, dismissing his complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.
In his formal complaint dated June 8, 2007, complainant alleged that he
was subjected to discrimination on the bases of race (Hispanic), national
origin (Panama), color (black), and in reprisal for prior protected EEO
activity under Title VII when a manager falsely testified under oath in
civil court that letters of warning, Pre-Disciplinary Interviews (PDI),
a letter of disciplinary proposal, and a notice of suspension were issued
because complainant wore a cap at work and had a postal umbrella.
In a final decision dated June 21, 2007, the agency dismissed
complainant's complaint on the basis that it failed to state a claim
because it was a collateral attack on the proceedings in another forum.
Despite the agency's dismissal of complainant's complaint, complainant
requested a hearing with an Administrative Judge (AJ) on March 10, 2008.
On March 20, 2008, the AJ dismissed complainant's hearing request
because the agency had already dismissed his complaint for failure to
state a claim.
On April 10, 2008, complainant filed the instant appeal with the
Commission. The agency contends that complainant's appeal is untimely
because it issued it final decision on June 21, 2007, but complainant
did not appeal this matter until April 10, 2008. The agency further
contends that it properly dismissed complainant's complaint for failure
to state a claim. On appeal, complainant contends that his appeal
is timely because he did not receive the agency's final decision.
Complainant further argues the merits of his dismissed claim.
As an initial matter, the Commission declines to dismiss complainant's
appeal on the basis that it was untimely filed because the agency failed
to provide any evidence that establishes when complainant received its
final decision, such as a certified mail receipt.1
In his complaint, complainant alleged that an agency manager gave false
testimony during a civil court proceeding concerning his harassment case.
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 civil
court proceeding was at that proceeding itself. It is inappropriate to
now attempt to use the EEO process to collaterally attack actions which
occurred in civil court. Bruce Henry v. United States Postal Service,
EEOC Appeal No. Appeal No. 0199972956 (December 11, 1998) (Commission
held that allegation that agency officials provided false, misleading,
and perjured testimony in a civil action in which he was a party does
not state a separate and independent claim of employment discrimination
and is a collateral attack on civil court proceedings). Thus, the
Commission finds that the agency properly dismissed complainant's
complainant pursuant to 29 C.F.R. � 1614.107(a) for failure to state
a claim. Accordingly, the Commission AFFIRMS the final agency decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 77960,
Washington, DC 20013. 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 (S0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with the Court 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
_________9/11/09_________
Date
1 We note that the Commission has held that where there is an issue
of timeliness, the agency bears the burden of obtaining sufficient
information to support a reasoned determination of timeliness. Guy
v. Department of Energy, EEOC Request No. 05930703 (January 4, 1994)
(quoting Williams v. Department of Defense, EEOC Request No. 05920506
(August 25, 1992).
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0120082202
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120082202