Jasper W. Gorham, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionNov 17, 2004
01A45086_r (E.E.O.C. Nov. 17, 2004)

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