0120073556
10-19-2007
Elbert Hicks, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Elbert Hicks,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120073556
Agency No. 4K210004807
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated July 9, 2007, 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., Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act
of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. Upon review, the
Commission finds that complainant's complaint was properly dismissed
pursuant to 29 C.F.R. � 1614.107(a)(1) because it is identical to issues
raised in a previous complaint.
In a complaint (Agency No. 4K-210-0048-07) dated April 27, 2007,
complainant alleged that he was subjected to discrimination on the bases
of race (African-American), sex (male), disability (back injury), age
(58), and reprisal. Briefly, complainant last worked for the agency
in 1984. Over the years he sought reinstatement, filing EEO complaints
against different facilities. The Commission has previously addressed
his reinstatement claims in Appeal No. 01A40923 (June 8, 2004), noting
the frequency of his complaints and stating "subsequent requests for
reinstatement do not create new causes of action." Nonetheless,
complainant filed another complaint regarding his reinstatement
after he took a functional capacity examination, in 2006 (Agency
No. 4K-210-0068-06). The case was investigated and the agency issued
a decision finding no discrimination. Because the matter was viewed as
a mixed case, appeal rights were given to the Merit Systems Protection
Board. Complainant then filed the instant complaint raising the same
issues - that he should be reinstated as well issues concerning his
worker's compensation claim. Complainant's submissions on appeal also
concern his restoration to employment with the agency and concerns with
his worker's compensation.1
After careful review of the record, the Commission finds that the
issue of his re-employment with the agency is identical to his previous
complaint, and was appropriately dismissed by the agency for that reason.
With respect to the worker's compensation issues, 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 raised his
challenges to actions which occurred during the worker's compensation
proceeding was at that proceeding itself. It is inappropriate to now
attempt to use the EEO process to collaterally attack actions which
occurred during the worker's compensation process. To the extent that
complainant is alleging he is harassed, the Commission finds that the
matters complained of do not rise to the level of harassment.
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 19, 2007
__________________
Date
1 The Commission notes that on appeal complainant submitted a transcript
related to his worker's compensation issues wherein he states he has a
case in court related to his EEO complaint and the agency's failure to
hire him.
??
??
??
??
2
0120073556
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
3
0120073556