0120113604
11-07-2012
Prashant Katyal, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Pacific Area), Agency.
Prashant Katyal,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 0120113604
Agency No. 1F-957-0031-11
DECISION
Complainant filed an appeal with this Commission from the Agency's decision dated June 15, 2011, dismissing his complaint of unlawful employment discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. and Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq. For the following reasons, we AFFIRM the Agency's Final Decision dismissing the complaint pursuant to 29 C.F.R. � 1614.107(a)(1).
BACKGROUND
At the time of events giving rise to this complaint, Complainant was a former Mail Processing Clerk at the Agency's Processing and Distribution Center in West Sacramento, California. On May 31, 2011, Complainant filed a complaint alleging that the Agency subjected him to discrimination on the bases of race (South Asian), religion (Hindu), national origin (Indian), sex (male), disability (back), and in reprisal for prior EEO activity when:
1. Complainant's unemployment was contested by the Agency; and
2. On March 22, 2011, Complainant received correspondence denying his request for reasonable accommodation.
The Agency dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a)(1) on the grounds that the instant claims were raised in two prior complaints that Complainant filed, Agency cases 1F-957-0050-08 and 1F-957-0036-08 that were resolved by a settlement agreement executed by Complainant in February 2011. The Agency found that Complainant had not worked since April 28, 2008, and that the claims in the instant complaint were encompassed by the claims in the resolved complaints. Accordingly, the Agency dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a)(1) as alleging the same claims presented in a prior complaint. The Agency also found that to the extent that claim (1) seeks to challenge a decision of the California Employment Development Department, claim (1) was further dismissed pursuant to the same Commission regulation as an attempt to use the EEO complaint process as a collateral attack against another forum.
ANALYSIS AND FINDINGS
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides that the Agency shall dismiss a complaint that states the same claim that is pending before or has been decided by the Agency or Commission.
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).
In the instant case, we find the Agency properly dismissed claim (1) of the complaint pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim. We find this claim attempts to challenge the activity that occurred in another forum through the EEO complaints process. We concur with the Agency that the proper place for Complainant to appeal the Agency's actions concerning his unemployment determination is in that forum in which his unemployment claim was decided. We find claim (1) was properly dismissed.
Regarding claim (2), we find that in Agency case number 1F-957-0050-08, the Agency accepted the following claim for investigation: On April 24, 2008, Complainant was not permitted to return to work. The record reveals that by letter dated March 22, 2011, the Agency denied Complainant's request to return to work with an accommodation based upon Complainant's execution of a settlement agreement that provided Complainant would apply for disability retirement. The record contains a copy of the settlement agreement signed by Complainant in February 2011, that resolved the identified complaint. We concur with the Agency that the resolved claim encompasses Complainant's efforts to return to work which was a matter that was settled. We find the Agency properly dismissed claim (2) pursuant to 29 C.F.R. � 1614.107(a)(1) on the grounds that this claim is the subject of a prior complaint that has been resolved by a settlement agreement.
CONCLUSION
We AFFIRM the Agency's Final Decision.
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
November 7, 2012
__________________
Date
2
0120113604
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120113604