01a45613
07-19-2005
Thomas King, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Eastern Area), Agency.
Thomas King v. United States Postal Service
01A45613
July 19, 2005
.
Thomas King,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Eastern Area),
Agency.
Appeal No. 01A45613
Agency No. 1C-443-0027-04
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated July 28, 2004, 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., and
Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as
amended, 29 U.S.C. � 791 et seq. In his complaint, complainant alleged
that he was subjected to discrimination on the bases of sex (male),
disability (Mitral Valve Prolapse and Bi-Polar), and in reprisal for
prior EEO activity when:
On March 10, 2004, management did not process a Department of Labor Form
CA-1 in a timely manner;
On April 13, 2004, and April 28, 2004, the instant EEO complaint was
not processed in a timely manner;
his prior EEO complaint, agency case no. 1C-443-0049-03 was not processed
in a timely manner; and,
on June 10, 2003, March 15, 2004, and June 2, 2004, management failed
to follow the recommendations of his doctor.
In its final decision dated July 28, 2004, the agency dismissed
complainant's complaint. Specifically, the agency found that claim one
constituted a collateral attack on proceedings held in another forum.
The agency also found that claims two and three allege dissatisfaction
with the processing of a previously filed complaint. The agency further
found that claim four was not brought to the attention of a counselor and
is not like or related to a matter that has been brought to the attention
of a counselor. On appeal, complainant contends, among other things,
that the agency failed to process the complaint within 180 days of the
filing date.
EEOC Regulation 29 C.F.R. � 1614.107 (a)(1) provides that an agency
shall dismiss a complaint, or portion thereof, that fails to state a
claim. An agency shall accept a complaint from any aggrieved employee
or applicant for employment who believes that he or she has been
discriminated against by that agency because of race, color, religion,
sex, national origin, age or disabling condition. 29 C.F.R. � 1614.103;
� 1614.106(a). The Commission's federal sector case precedent has long
defined an �aggrieved employee� as one who suffers a present harm or
loss with respect to a term, condition, or privilege of employment for
which there is a remedy. Diaz v. Dep't of the Air Force, EEOC Request
No. 05931049 (April 22, 1994).
In addition, EEOC Regulation 29 C.F.R. � 1614.107(a)(8) provides that
an agency shall dismiss a complaint, or portion thereof, that alleges
dissatisfaction with the processing of a previously filed complaint.
Furthermore, EEOC Regulation 29 C.F.R. � 1614.107(a)(2) provides that
an agency shall dismiss a complaint, or portion thereof, that raises a
matter that has not been brought to the attention of a Counselor and is
not like or related to a matter that has been brought to the attention
of a Counselor.
Based on the foregoing, we find that the agency properly dismissed claim
one for failure to state a claim. The record reveals that complainant
alleged that management failed to process a Form CA-1 within the allotted
time. The Commission has long held that an employee can not use the EEO
complaint process to lodge a collateral attack on another proceeding.
Kleinman v. United States Postal Service, EEOC Appeal No. 05940585
(September 22, 1994); Aguilar v. Department of the Treasury, EEOC Appeal
No. 01981592 (March 30, 1999). The proper forum for complainant to have
raised his challenge to actions that occurred during the processing of
his Form CA-1 was with the Department of Labor. It is inappropriate to
now attempt to use the EEO process to collaterally attack actions which
occurred during the processing of his Form CA-1. Since complainant's
claim is a collateral attack on another's forum proceeding, complainant
fails to state a claim.
In regard to claims two and three, the record reflects that these
two issues involve the processing of previously filed EEO complaints.
Consequently, we find that the agency properly dismissed claims two
and three.
In regard to claim four, it is uncontroverted that this issue was not
brought to the attention of a Counselor, neither is it like or related
to any claims for which complainant received counseling. As a result,
we find that the agency properly dismissed claim four.
After a careful review of the record, including complainant's contentions
on appeal, and arguments and evidence not specifically addressed in this
decision, we AFFIRM the FAD's dismissal.
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 19, 2005
__________________
Date