01a52361
07-26-2005
James Rose, III, Complainant, v. John E. Potter, Postmaster General, United States Postal Service (Eastern Area), Agency.
James Rose, III v. United States Postal Service
01A52361
07-26-05
.
James Rose, III,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service
(Eastern Area),
Agency.
Appeal No. 01A52361
Agency No. 1C-284-0128-03
Hearing No. 140-2004-00272X
DECISION
Complainant initiated EEO Counselor contact on September 25, 2003.
At the conclusion of the investigation, complainant requested a hearing
before an EEOC Administrative Judge. Upon review, the Commission
finds that the agency appropriately adopted the EEOC Administrative
Judge's (AJ) dismissal of complainant's complaint pursuant to 29
C.F.R. � 1614.107(a)(2), for untimely EEO Counselor contact and 29
C.F.R. �1614.107(1), for failure to state a claim.
In his complaint, complainant alleged that he was subjected to
discrimination on the basis of disability (physical) and in reprisal
for prior EEO activity when the agency failed to provide him with a
position within his medical restrictions. However, after a review of
the record, the AJ determined that complainant's claim consisted of two
separate claims: (1) the agency breached a settlement agreement entered
into by the parties on August 7, 2002, when it failed to accommodate
his disability; and (2) the agency failed to accommodate his condition
�according to OWCP.�
The AJ found that complainant failed to timely contact an EEO Counselor
with regard to his settlement breach claim. Specifically, the AJ found
that complainant's last day in pay status at the agency was August 30,
2002, and complainant failed to inform the EEO Director within thirty
(30) days of an allegation of settlement breach. The AJ also found that
complainant's claim regarding the failure of the agency to accommodate
him according to OWCP was a collateral attack on the OWCP process,
and therefore dismissed the complaint for failure to state a claim.
Preliminarily, we find that the AJ appropriately reframed complainant's
claim into two separate claims. The record reflects that the agency
informed complainant that it could not provide him with a reasonable
accommodation as required by the August 7, 2002 settlement agreement on
August 26, 2002, but complainant did not initiate contact with an EEO
Counselor until September 25, 2003, which is well beyond the forty-five
(45) day limitation period. Additionally, there is no evidence in
the record that complainant contacted the EEO Director within thirty
(30) days of being notified of the agency's decision. On appeal,
complainant has presented no persuasive arguments or evidence warranting
an extension of the time limit for initiating EEO Counselor contact.
Further, we find that complainant is attempting to lodge a collateral
attack on the OWCP process. The Department of Labor approved and began
processing complainant's claim for worker's compensation in August 2003.
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).
The proper forum for complainant to have raised his challenges to actions
which occurred during or as a result of the OWCP proceeding was at that
proceeding itself. It is inappropriate to now attempt to use the EEO
process to collaterally attack actions which occurred during that process.
Accordingly, the agency's final decision adopting the AJ's dismissal of
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
______07-26-05____________
Date