01A05152_r
10-16-2001
Edward Arayaes v. United States Postal Service
01A05152
October 16, 2001
.
Edward Arayaes,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A05152
Agency No. 1E-891-0027-00
DECISION
Upon review, the Commission finds that complainant's complaint was
properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1) and (2). In his
complaint, complainant alleged that he was subjected to discrimination
on the bases of disability and reprisal for prior EEO activity when:
On January 30, 2000, he received records from personnel that indicate
that a hiring error occurred and he should have been hired in 1983,
not 1984; and
On February 22, 2000, complainant's grievance was denied while another
employee's equivalent claim was sustained and settled.
The record indicates that, for claim (1), complainant had or should
have had a reasonable suspicion of discrimination in 1983, but did not
initiate contact with an EEO Counselor until February 22, 2000, which
is well beyond the forty-five day limitation period. We also find that
complainant's contention that he only discovered proof of the alleged
discrimination after he requested his personnel file in January 2000 is
insufficient to justify an extension of the applicable time limit for
over 16 years. Therefore, claim (1) was properly dismissed for untimely
EEO Counselor contact pursuant to 29 C.F.R. � 1614.107(a)(2).
With regard to claim (2), 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). The proper
forum for complainant to have raised his challenge to the grievance
decision was within the grievance process itself. Claim (2) was thus
appropriately dismissed for failure to state a claim pursuant to 29
C.F.R. � 1614.107(a)(1).
Accordingly, the agency's final decision dismissing complainant's
complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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
October 16, 2001
__________________
Date