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