01A11929
04-26-2001
Drayco El-Amin, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Drayco El-Amin v. United States Postal Service
01A11929
April 26, 2001
.
Drayco El-Amin,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A11929
Agency No. 4-H-390-0214-00
DECISION
Complainant filed an appeal with this Commission from an agency decision
pertaining to his complaint of unlawful employment discrimination in
violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 et seq. The Commission accepts the
appeal in accordance with 29 C.F.R. � 1614.405.
Complainant contacted the EEO office claiming that he was discriminated
against when on May 24, 2000, he was ordered to submit to a
fitness-for-duty exam, and by notice dated July 6, 2000, he was advised
not to return to work. Informal efforts to resolve complainant's concerns
were unsuccessful. Subsequently, on October 6, 2000, complainant filed
a formal complaint based on disability.
On December 14, 2000, the agency issued a decision dismissing the
complaint for failure to state a claim. Specifically, the agency
determined that the complaint expressed dissatisfaction with a
fitness-for-duty exam which was part of a Merit Systems Protection Board
(MSPB) settlement agreement, and therefore was a collateral attack on
the MSPB process.
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in
relevant part, that an agency shall dismiss a complaint 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,
.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. Department of the Air Force, EEOC Request
No. 05931049 (April 21, 1994).
A review of the instant record reveals a MSPB settlement agreement
executed on April 26, 2000. The document states that �[t]he purpose of
this settlement agreement is to determine [complainant's] fitness for
duty.� The settlement requires complainant to undergo a fitness-for-duty
exam and file for disability retirement if he is not found to be suitable,
which is the subject of the instant EEO complaint. 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 or as a result
of the MSPB process was at or through that proceeding itself. It is
inappropriate to now attempt to use the EEO process to collaterally
attack actions which occurred through the settlement of his MSPB cases.
Accordingly, the agency's decision to dismiss the complaint for failure
to state a claim was proper and is hereby AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
April 26, 2001
__________________
Date