0120093613
02-23-2010
Guillermo Mojarro, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Pacific Area), Agency.
Guillermo Mojarro,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Pacific Area),
Agency.
Appeal No. 0120093613
Agency No. 4F926020209
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity
Commission (EEOC or Commission) from the agency's decision dated August 7,
2009, dismissing his complaint of unlawful employment discrimination in
violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 et seq.
On June 5, 2009, the Merit Systems Protection Board (MSPB) issued
an initial decision which is relevant to complainant's complaint.
The MSPB found that in December 2008, complainant gave the agency
medical documentation clearing him to return to work, asked to return,
but was not returned to work. The MSPB found that while it was clear
that complainant's absence prior to December 9, 2008 was voluntarily
initiated by him, his absence after December 9, 2008, became involuntary,
and remained so. It found that insomuch as complainant's request to
return to work was denied for more than 14 days, he was subjected to a
disciplinary constructive suspension.
The MSPB noted that the agency scheduled complainant for a medical
fitness for duty examination (FFDE) on March 24, 2009, based on the
agency's determination that there was a conflict in medical opinions on
whether complainant was fit to return to work. The MSPB found that when
complainant came to FFDE, he refused to sign a medical release which would
allow the examining physicians to share their findings with the agency.
It determined that after March 24, 2009, when complainant declined to
sign the release necessary to conduct the FFDE, his absence from the
workplace was caused by his own willful actions and thus once again
became voluntary.
The MSPB concluded that complainant's constructive suspension lasted
from December 9, 2008 through March 24, 2009, and that in suspending
him, the agency did not provide him the procedural protections of
5 U.S.C. � 7513(b), nor any other advance notice or opportunity to
respond to such a notice. It found that this violated complainant's
constitutional right to minimum due process, and hence, the suspension
could not be sustained. It found, however, that the suspension was
not due to disability discrimination. It also found that the agency
did not discriminate against complainant based on disability when as a
pre-condition to returning to work, it required that he sign a medical
release form and undergo a FFDE. A petition for review of the initial
decision is still pending with the MSPB.
In his complaint, complainant alleged that he was subjected to
discrimination on the bases of disability and reprisal for prior protected
EEO activity when:
1. on June 4, 2009, an agency medical director gave false testimony at
his MSPB hearing;
2. on or around June 5, 2009, he was placed in a non-pay status; and
3. on June 5, 2009, he was coerced into signing a medical release form.
According to the counselor's report, complainant avers that the
postmaster, pointing to the MSPB's decision, coerced him into signing
the release. According to the counselor's report, the postmaster said
that as a result of the MSPB decision, the agency moved complainant from
an administrative pay status to a non-pay status beginning on March 24,
2009, and that the MSPB ruled that by not signing the medical release,
complainant was voluntarily not working. The postmaster said that
complainant was asked and will continue to be asked to sign the release
for a FFDE.
The agency dismissed the complaint for failure to state a claim.
It reasoned that claims 1 and 2 were collateral attacks on the MSPB
proceeding. It found that complainant was not harmed by the matter in
claim 3.
On appeal, complainant argues that the agency placed him in a non-pay
status because of the MSPB's initial decision, and this is reprisal
discrimination. He argues that there is a grievance settlement dated
March 9, 2009, which allows him to remain in an administrative leave
status, and no one has the right to void the settlement agreement.
The settlement agreement is not in the record. Complainant also contends
that at the MSPB hearing, the agency's medical director testified that he
must sign the medical release. In opposition to the appeal, the agency
argues its final decision should be affirmed.
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 MSPB
proceeding was in that proceeding itself and forums which take appeals
from the MSPB's decision. It is inappropriate to attempt to use an
EEO complaint to collaterally attack actions which occurred during the
MSPB process.
Claim's 1, 2 and 3 are an attempt to use an EEO complaint to challenge
things which occurred in the MSPB proceeding, i.e., allegedly false
testimony during an MSPB hearing, and the finding in the MSPB's initial
decision that requiring complainant to sign a release form before
returning to work was not discriminatory. Filing an EEO complaint
on these matters is a collateral attack on the MSPB process. We note
that after the Board issues its decision on the petition for review,
complainant will be given renewed rights to file a petition for review
with the EEOC. This is different from being permitted to file a separate
EEO complaint on the same matter.
The agency's decision to dismiss the complaint is affirmed.1
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 77960,
Washington, DC 20013. 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 (S0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
February 23, 2010
__________________
Date
1 However, if the Board denies jurisdiction over mixed case claims,
the agency is required to unmix those claims and process them in the
EEO process. See Schmitt v. Department of Transportation, EEOC Appeal
No. 01902126 (July 9, 1990) (sets forth the policy of the Commission
assuming jurisdiction over cases dismissed by the MSPB for lack of
jurisdiction); Phillips v. Department of Army, EEOC Request No. 05900883
(October 12, 1990); Cf. 29 C.F.R. � 1614.302(c)(2)(ii).
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0120093613
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120093613