01A34517_r
12-02-2003
Michael Morrissey v. United States Postal Service
01A34517
December 2, 2003
.
Michael Morrissey,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A34517
Agency No. 1E-971-0025-03
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated July 29, 2003, 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. In his
complaint, complainant alleged that he was subjected to discrimination
on the bases of sex (male) and reprisal for prior EEO activity when:
On November 19, 2002, complainant did not receive 12 hours pay and 3
hours of restored sick leave, pursuant to a grievance settlement;
On unspecified dates, management refused to investigate charges of sexual
harassment complainant made and failed to follow-up or take action when
complainant reported subsequent acts of harassment.
The agency dismissed claim (1), reasoning that claim (1) alleges
dissatisfaction with the outcome of a claim settled through the agency's
grievance process. The agency dismissed claim (2), pursuant to 29
C.F.R. � 1614.107(a), finding that complainant had raised the same claim
in a prior complaint, agency case number 1E-971-0021-01.
On appeal, complainant states that claim (1) is one incident that is
part of a continuing pattern of harassment, based on reprisal, which has
impacted him and his family financially, since he was ill during the time
in question. Complainant further argues that his complaint contains no
"claim (2)." Complainant explains that he included background information
to demonstrate the overall history of retaliation he has been forced
to endure.
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 raise his concerns regarding the agency's
compliance with an agreement reached through the agency's grievance
process is through that process itself. It is inappropriate to now
attempt to use the EEO process to collaterally attack actions which
occurred during the grievance process. Claim (1) is properly dismissed
pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim.
The Commission accepts complainant's explanation that he did not intend
to allege a separate claim (2) regarding harassment, except as background
information describing a continuing pattern of reprisal. We find claim
(2) is therefore properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1)
for failure to state a claim.
We therefore AFFIRM the agency's dismissal of the complaint.
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
December 2, 2003
__________________
Date