William Parks, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionJun 25, 2009
0120091208 (E.E.O.C. Jun. 25, 2009)

0120091208

06-25-2009

William Parks, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


William Parks,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 0120091208

Agency No. 1H337000209

DECISION

Complainant filed a timely appeal with this Commission from the agency's

decision dated January 5, 2009, 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 a complaint dated December 29, 2008, complainant alleged that he

was subjected to discrimination on the bases of disability (diabetes)

and reprisal for prior protected EEO activity under Title VII of the

Civil Rights Act of 1964 when the agency refused to comply with an

order in a Merit Systems Protection Board (MSPB) decision. Briefly,

complainant filed an appeal with the MSPB when the agency placed him on

enforced leave and refused to accommodate him. The MSPB Administrative

Judge (AJ) found no discrimination and the decision was upheld by the

full Board. Complainant appealed the Board's decision to this Commission

which, after a remand for further information, issued a decision differing

with the Board. (Petition No. 0320070127, July 28, 2008). Thereafter,

the MSPB issued an Opinion and Order, concurring with and adopting the

Commission's findings. Therein, the MSPB ordered the agency to reinstate

complainant to an appropriate position, among other relief.

In the instant EEO complaint, it appears that complainant is disputing

the position to which he was reinstated. Specifically, complainant

asserts the agency's assigned him to a Mail Handler position rather

than a Custodial Laborer position in violation of the MSPB order and

his right to reasonable accommodation as articulated in EEOC Petition

No. 0320070127. The agency dismissed the complaint, pursuant to 29

C.F.R. � 1614.107(a)(1), for failure to state a claim. The instant

appeal followed.

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 raise his enforcement claim of the relief ordered by the MSPB is with

the MSPB itself. The Commission has no jurisdiction to enforce an order

of the MSPB.

Accordingly, the Commission affirms the agency's dismissal of the instant

EEO complaint.1

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

June 25, 2009

__________________

Date

1 However, the Commission reminds the agency that the duty to

provide reasonable accommodation to an employee with a disability is

ongoing. Therefore, complainant retains a current right to reasonable

accommodation. Complainant is entitled to file a new complaint of

discrimination if the agency is currently denying him reasonable

accommodation separate and apart from the claim adjudicated by the MSPB.

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0120091208

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

3

0120091208