0120121308
05-25-2012
Daniel Pitts, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Capital Metro Area), Agency.
Daniel Pitts,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Capital Metro Area),
Agency.
Appeal No. 0120121308
Agency No. 4K300013311
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated December 9, 2011, 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 the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Manager Customer Service at the Agency's Post Office facility in Decatur, Georgia.
On November 18, 2011, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (African-American), age (55), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when (1) on December 8, 2010 he was sent an official Directive - Report for Duty letter; (2) on December 16, 2010, he was forced to retire; and (3) on July 27, 2011 he was notified that his claim was accepted by the Office of Workers' Compensation (OWCP).
The Agency dismissed claims 1 and 2 as having been previously raised in Agency No. 4H-300-0100-11, for which it issued a final Agency decision. The Agency also noted that claims 1 and 2 were untimely raised. The Agency dismissed claim 3 for failure to state a claim. The instant appeal followed. In his appeal Complainant states he was not given appeal rights regarding his previous complaint.
ANALYSIS AND FINDINGS
As an initial matter, the Commission finds that claims 1 and 2 were raised in the previous complaint. Complainant's previous formal complaint specifically referenced his retirement of December 16, 2010. Further, the Agency's final decision included appeal rights to the Commission. As such, these claims were properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1) for stating the same claim as that raised in the previous complaint. Additionally, the Commission agrees that Complainant untimely raised claims 1 and 2 when he contacted the EEO counselor on August 4, 2011, which is more than 45 days after the events occurred. 29 C.F.R. � 1614.107(a)(2).
With respect to his OWCP claim, it appears that Complainant is arguing that if his OWCP claim had been accepted sooner he would not have had to use his leave and it would have impacted on his retirement.
The Commission has held that an employee cannot use the EEO complaint process to lodge a collateral attack on another proceeding. See Wills v. Dep't of Def., EEOC Request No. 05970596 (July 30, 1998); Kleinman v. U.S. Postal Serv., EEOC Request No. 05940585 (Sept. 22, 1994); Lingad v. U.S. Postal Serv., EEOC Request No. 05930106 (June 25, 1993). The proper forum for Complainant to have his issues concerning the processing of his OWCP claims is within that proceeding itself. It is inappropriate to now attempt to use the EEO process to collaterally attack actions involving OWCP.
The Commission finds that the claim 3 fails to state a claim under the EEOC regulations because Complainant failed to show that he suffered harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. See Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (April 21, 1994).
Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 (S0610)
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 (Z0610)
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
May 25, 2012
__________________
Date
2
0120121308
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120121308