Larry Gilmore, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionMar 17, 2005
01a43520 (E.E.O.C. Mar. 17, 2005)

01a43520

03-17-2005

Larry Gilmore, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Larry Gilmore v. United States Postal Service

01A43520

March 17, 2005

.

Larry Gilmore,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A43520

Agency No. 4H-370-0060-04

DECISION

Complainant filed an appeal with this Commission from the April 7,

2004 agency decision, dismissing his complaint pursuant to 29 C.F.R. �

1614.107(a)(4) on the grounds that complainant had raised the matter in

an appeal to the Merit Systems Protection Board (MSPB).

In his complaint, complainant alleged that he was subjected to

discrimination on the bases of disability, age (D.O.B. September 28,

1954), and reprisal for prior EEO activity when: (1) on January 4, 2004,

complainant was informed that he had become a fulltime tire repairman

contrary to the terms of a settlement agreement; and (2) on February 8,

2004, complainant was informed that his job title was that of a tire

repairman/modified garageman.

The record reveals that complainant filed an appeal with the MSPB (MSPB

Docket No. AT-0752-98-0640-B-1) challenging his removal from a tire

repairman position on April 13, 1998, for failure to meet the minimum

physical requirements for his position and declining a rehabilitation

offer. The record further reveals that in an Initial Decision, dated

July 27, 2000, the MSPB Administrative Judge dismissed the appeal, noting

therein that the parties had settled the appeal and making the settlement

agreement a part of the record. The July 27, 2000 decision of the MSPB

dismissing complainant's appeal also stated that if complainant believed

that there was not full compliance with the terms of the agreement,

complainant could petition the MSPB to enforce the settlement agreement

by filing a petition for enforcement with the MSPB.

The Commission finds that the complaint is appropriately dismissed

pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim for

which there is a remedy. The Commission has held that an employee

cannot use the EEO complaint process to lodge a collateral attack on

another proceeding. See Kleinman v. United States Postal Service,

EEOC Request No. 05940585 (September 22, 1994); Lingad v. United States

Postal Service, EEOC Request No. 05930106 (June 24, 1993). The proper

forum for complainant to have raised his claim of noncompliance with

the MSPB settlement agreement is within the MSPB process.

Accordingly, for the reasons herein stated, the dismissal of the complaint

for failure to state a claim 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

March 17, 2005

__________________

Date