01a43660
01-21-2005
Nicholas DiCosola, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Nicholas DiCosola v. United States Postal Service
01A43660
January 21, 2005
.
Nicholas DiCosola,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A43660
Agency No. 4J-604-0194-03
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision dated March 22, 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.
On August 1, 2003, complainant initiated EEO Counselor contact.
Informal efforts to resolve his concerns were unsuccessful. In his
formal complaint dated January 20, 2004, complainant claimed that he
was subjected to discrimination on the basis of sex.
In its final decision dated March 22, 2004, the agency determined that
complainant's complaint was comprised of the following claim:
on July 29, 2003 [complainant] received a Letter of Decision on the
Notice of Proposed Removal issued to [him] in April 2003; on September 25,
2003,<1> [he] received a response from the Area Manager, Human Resources
to [his] appeal of the review of the July 29, 2003 decision; [complainant]
alleged [he was] singled out, and on August 1, 2003, he became aware
that a series of discipline[s] issued to [him] were based on his male
[gender], from the first discipline issued by management at which point
a pattern of bias exists through a simple review of all relevant facts,
not misrepresentations.
The agency dismissed complainant's complaint for failure to state
a claim. Specifically, the agency stated that complainant's complaint
was a collateral attack on the processing of his �650 Non-bargaining
Appeal.� In addition, the agency stated that complainant failed to
describe an adverse action that affected a term, condition, or privilege
of his employment.
The agency stated that it was also dismissing complainant's complaint for
raising the same claim that had been previously raised with the agency.
Specifically, the agency stated that complainant filed a previous EEO
complaint, Agency No. 4J-604-0125-02, for discipline issued on June
13, 2002. The agency further asserted that the June 13, 2002 discipline
�is related to all previous discipline issued to [him] and was resolved
through the REDRESS mediation process on August 27, 2002.�
On appeal, complainant asserts that his claim is that �[he] has been
harassed and discriminated based on [his] gender which has resulted in
[him not being promoted].� In addition, complainant states that with
respect to Agency No. 4J-604-0125-02, two of the individuals involved
with the original discipline were having an affair.
In response, the agency requests that we affirm its final decision.
In addition, the agency states that complainant is improperly raising
a new claim, (not being promoted), for the first time on appeal.
As a threshold matter, the Commission finds that the agency properly
framed complainant's claim, which did not include the issue of a
non-promotion as identified by complainant on appeal. The Commission
acknowledges that in his formal complaint, complainant stated that part
of the remedy he is seeking is �a promotion which was denied;� however,
a fair reading of the record reflects that the crux of complainant's
complaint is discipline that he purportedly received. Specifically,
complainant stated in his formal complaint that �he became aware...that
a series of discipline[s] issued [to him] w[ere] biased toward [his]
gender.�
The record also contains a copy of the EEO Dispute Resolution Specialist's
Inquiry Report. Therein, the EEO Dispute Resolution Specialist stated
that complainant's claim is �on July 29, 2003, he received a Letter of
Decision, on September 25, 2003, he received a response to his appeal of
a Letter of Warning....on August 1, 2003, he became aware that a series
of discipline[s] issued to him w[ere] based towards his gender.� Finally,
the record contains complainant's Information for Pre-Complaint Counseling
form. Therein, complainant asserted that he received a response to his
appeal for a Letter of Warning and that he is being singled out based
on his sex. Complainant further states that he has been singled out
for being male with respect to �all previous discipline.�
The Commission finds that the agency properly dismissed complainant's
complaint with respect to the responses he received on his �650 appeal.�
The record contains a copy of a July 29, 2003 Letter of Decision from
the Officer-in Charge. Therein, the Officer-in-Charge states that he is
reducing the Notice of Proposed Removal to a Letter of Warning in Lieu of
30-Day Suspension. The record also contains a memorandum to complainant
dated September 5, 2003, from the Manager, Human Resources (HR) entitled
�Nonbargaining Appeal.� Therein, HR asserts that the discipline set
forth in the agency's July 29, 2003 Letter of Decision is warranted but
is being reduced to a Letter of Warning in Lieu of 14-Day Suspension.
We find that complainant's claim with respect to the decisions issued by
the Officer-in-Charge and HR regarding complainant's �650 appeal� amounts
to a collateral attack on the �650 appeal� process. 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).
However, the Commission notes that complainant is further claiming that
he was subjected to discrimination with respect to previous discipline
that he received. However, the Commission is unable to ascertain whether
the agency properly dismissed this portion of complainant's complaint.
In its final decision, the agency determined that complainant filed
a prior EEO complaint, Agency No. 4J-604-125-02, which was settled.
The record contains an Information for Pre-Complaint Counseling form for
Agency No. 4J-604-0125-02. Therein, complainant states that on June 14,
2002, he received a Letter of Warning in Lieu of a 14-day Suspension.
In addition, the record contains a settlement agreement for Agency
No. 4J-604-0125-02. It is, however, unclear from the record precisely
what discipline complainant is alleging is discriminatory. Therefore,
the Commission remands this matter to the agency for further processing
in accordance with the Order below.
Accordingly, the Commission AFFIRMS the agency's decision dismissing
complainant's complaint with respect to the responses he received from
the Officer-in-Charge dated July 29, 2003 and HR dated September 5,
2003, regarding his �650 appeal.� However, the Commission VACATES the
agency's decision dismissing the remainder of complainant's complaint
and REMANDS this matter in accordance with the ORDER below.
ORDER
The agency is ORDERED take the following actions:
1) The agency shall schedule, in writing, a meeting between complainant
and an EEO Counselor in order to determine the specific discipline
complainant is alleging is discriminatory.
2) Thereafter, the agency shall then issue either a final decision
dismissing his claims or a letter to complainant notifying him that the
agency is accepting his claims for investigation.
The agency shall complete all of the above actions within 45 calendar
days from the date this decision becomes final. A copy of the agency's
acceptance letter or final decision must be sent to the Compliance
Officer as referenced herein.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 (T0900)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. In the alternative, you may file a civil action after
one hundred and eighty (180) calendar days of the date you filed your
complaint with the agency, or your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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
January 21, 2005
__________________
Date
1The Commission notes that while the agency
states in its final decision that complainant received the response from
the Area Manager, Human Resources on September 25, 2003, complainant,
in his Information for Pre-Complaint Counseling form, stated that he
received the response on September 5, 2003.