01A31678_r
06-12-2003
Michael Jernigan, Sr., Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Michael Jernigan, Sr. v. United States Postal Service
01A31678
June 12, 2003
.
Michael Jernigan, Sr.,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A31678
Agency No. 4-J-600-0014-03
DECISION
Complainant filed a timely appeal with this Commission from an agency
decision dated December 12, 2002, dismissing his complaint of unlawful
employment discrimination. In his complaint dated November 22, 2002,
complainant alleged that he was subjected to discrimination on the
bases of race (African-American), age (date of birth: July 22, 1953),
and reprisal for prior EEO activity when: (1) on December 29, 2001,
management officials from the Evanston Post Office subjected him to
continuing harassment (after he had already been reassigned to the
Chicago Post Office) when they chose to pursue his disciplinary removal
through arbitration, and the arbitrator in an October 5, 2002 decision,
upheld the removal issued to him; and (2) on October 9, 2002, he received
notification that he would be removed from the rolls of the agency's
Chicago District effective October 10, 2002.
The agency dismissed the complaint for failure to state a claim.
Specifically, the agency found that complainant lodged a collateral attack
on the arbitration process and failed to describe an adverse action taken
against him which affected a term, condition or privilege of employment.
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).
The Commission finds that the complaint is outside the purview of the EEO
process and that the agency properly dismissed this matter for failure to
state a claim. We find that complainant is improperly attempting to use
the EEO process to collaterally attack the outcome of the arbitration
process. 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 dissatisfaction with the processing of his arbitration determination
is within that process.
Moreover, we find that find that complainant has not established that the
alleged events resulted in a personal harm or loss to a term, condition
or privilege of his employment. Furthermore, we do not find that the
events described by complainant are sufficiently severe or pervasive to
state a claim of discriminatory harassment. See Cobb v. Department of
the Treasury, EEOC Request No. 05970077 (March 13, 1997).
To the extent that complainant is attempting to challenge his removal
in this complaint, we find that such a complaint is properly dismissed
pursuant to � 1614.107(a)(1) for stating the same claim as raised by
complainant in agency number 4J-606-0028-03.
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
June 12, 2003
__________________
Date