01a43811
11-16-2004
Arthur A. King, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Arthur A. King v. United States Postal Service
01A43811
November 16, 2004
.
Arthur A. King,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A43811
Agency No. 4F-926-0054-04
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision dated March 26, 2004, dismissing his complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.
In his formal complaint, filed on February 20, 2004, complainant alleged
that he was subjected to discrimination on the bases of national origin
and in reprisal for prior EEO activity.
In its final decision dated March 26, 2004, the agency determined that
complainant's complaint was comprised of three claims, that the agency
identified in the following fashion:
On November 18, 2003, complainant's request for PS Form 3189, Change of
Schedule for Personal Business Privileges, was denied. In his formal
complaint, complainant noted that on February 16, 2003, a named agency
supervisor settled a grievance filed by complainant's union, stating
that complainant could get a PS form 3189 signed by the union;
On December 8, 2003, the agency violated Article 15.1 of its agreement
with the union; and
On December 1, 2003, the agency violated the Privacy Act.
The agency dismissed complainant's complaint for failure to state a claim.
Specifically, the agency found that claims (1) and (2) are matters within
the jurisdiction of the agency's internal grievance procedure and not
the EEO process. The agency also dismissed claim (3) for failure to
state a claim. The agency concluded that claim (3) regarding Privacy
Act violations are not within the purview of regulations governing the
EEO complaint process.
The Commission has held that an employee cannot use the EEO process to
lodge collateral attack on another proceeding. See Willis v. Department
of Defense, EEOC Request No. 05970596 (July 30, 1998); Kleinman
v. United States Postal Service, EEOC Request No. 05930106 (June 25,
1993). The proper forum for complainant to have raised a challenge to
the actions which occurred in pursuit of his grievance, is within the
grievance procedure itself. It is inappropriate to attempt to use the EEO
process to collaterally attack actions which occurred in another forum.
The Commission, therefore, affirms the agency's dismissal of claims (1)
and (2) for failure to state a claim.
In addition, to the extent that claim 3 of complainant's complaint
is construed as alleging a specific violation of the Privacy Act, the
Commission affirms the agency's decision dismissing that portion of the
complaint for failure to state a claim. The Privacy Act, 5 U.S.C. �
552(g)(1), provides an exclusive statutory framework governing the
disclosure of identifiable information contained in federal systems of
records and jurisdiction rests exclusively in the United States District
Courts for matters brought under the Privacy Act. See Bucci v. Department
of Education, EEOC Request Nos. 05890289, 05890290, 05890291, (April
12, 1989).
Accordingly, the agency's decision dismissing complainant's complaint
for failure to state a claim is hereby AFFIRMED for the reasons set
forth herein.
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
November 16, 2004
__________________
Date