01A45086_r
11-17-2004
Jasper W. Gorham, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Jasper W. Gorham v. United States Postal Service
01A45086
November 17, 2004
.
Jasper W. Gorham,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A45086
Agency No. 4C-270-0090-04
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated July 1, 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. and Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq. In his complaint, complainant alleged that he
was subjected to discrimination on the bases of race (African-American),
color (black), disability (knee) and reprisal for prior EEO activity when:
On February 6, 2004, complainant received a letter from the agency
modifying the September 19, 2003 recommended decision of his ELM 650
hearing held on May 19, 2003.
The agency dismissed complainant's complaint pursuant to 29 C.F.R. �
1614.107(a)(1), for failure to state a claim. The agency stated that
the alleged claim amounts to a collateral attack of the ELM 650 Step 1
Review - Hearing Officer Findings of Fact, concerning his removal.
On appeal, complainant claims that he was discriminated against when
the agency rejected the ELM 650 hearing decision recommending that he be
returned to work with full back pay in a non-supervisory position with no
loss of seniority. Complainant states that rather than reinstate him as
provided in the ELM ruling, he was required to first take the agency's
battery examination. Complainant states that this is the first time
the agency has refused to accept a recommended 650 hearing decision.
Complainant states that White and non-disabled employees who have won
a 650 ruling have been provided with the remedy set out in the hearing
examiner's decision. Complainant contends that he is not seeking to
challenge the ELM Section 650 hearing decision. Rather, he claims
that the agency's refusal to implement the ELM 650 decision was based
on discriminatory factors. Complainant argues that if discrimination
is proven, he would be entitled to a remedy under EEO law and not the
agency's ELM 650 proceeding.
Upon review, we find that the agency properly dismissed complainant's
complaint. 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). As complainant is attempting
to seek enforcement of the ELM 650 hearing decision, we find that he
fails to state a cognizable claim.
Accordingly, the agency's 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
November 17, 2004
__________________
Date