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