01A41396_r
04-15-2004
Mark G. Zysk, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Mark G. Zysk v. United States Postal Service
01A41396
April 15, 2004
.
Mark G. Zysk,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A41396
Agency No. 4-J-481-0084-03
DECISION
Complainant filed a timely appeal with this Commission from a final
agency decision dated November 17, 2003, dismissing his complaint of
unlawful employment discrimination brought pursuant to 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. The Commission accepts
the appeal. See 29 C.F.R. � 1614.405.
In his formal complaint, filed on July 25, 2003,. complainant claimed
that the agency subjected him to discrimination and harassment on the
bases of disability and in reprisal for prior EEO activity. Based on a
fair reading of the record, the Commission determines that complainant
identified the following incidents in support of his complaint:
On December 12, 2002, complainant received a Step B grievance
decision which reversed favorable decisions in two previous grievance
determinations, in effect barring him from access to the grievance
procedure;
On January 22, 2003, the agency refused to comply with a pre-arbitration
settlement agreement regarding improper disability-related medical
inquiries, and refused to reimburse complainant with a money order for
medical fees related thereto;
On January 31, 2003, the agency denied complainant union representation;
On February 4, 2003, complainant discovered that his use of Leave Without
Pay (LWOP) for his Office of Workers' Compensation Programs (OWCP)
therapy sessions were improperly coded as �59" rather than �49,� causing
loss of certain benefits, and the agency refused to change the code;
On February 22, 2003, the agency issued an improper and unlawful decision
on a certain grievance, effectively barring complainant from access to
the grievance procedure; and,
On February 25, 2003, the District Dispute Resolution Team refused to
rule on the merits of law and violated the Privacy Act by making improper
disability related medical inquiries.
The agency dismissed the instant complaint for failure to state a
claim, finding that each incident constituted a collateral attack on
the grievance procedure and the OWCP forum.
On appeal, complainant argues that each incident was motivated by
discriminatory and retaliatory animus, and that because the agency's
actions abridged his rights within each of these procedures, his complaint
states an actionable 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
raise a challenges to actions which occurred in another proceeding was
at that proceeding itself. It is inappropriate to attempt to use the EEO
process to collaterally attack actions which occurred in another forum.
The Commission determines that the actions identified by complainant,
as set forth in the incidents enumerated above, clearly fall within
the forum of either the union grievance or OWCP processes, or concern
Privacy Act violations. Therefore, we concur with the agency that the
instant complaint constitutes a collateral attack on these processes,
or otherwise does not fall within the purview of the EEO process, and
we find that the agency properly dismissed the complaint on the grounds
of failure to state a claim.
Accordingly, we AFFIRM the agency's final decision dismissing the
captioned complaint.
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
April 15, 2004
__________________
Date