0120110134
08-29-2012
Rhoderick D. Hall, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Southeast Area), Agency.
Rhoderick D. Hall,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Southeast Area),
Agency.
Appeal No. 0120110134
Agency No. 1H-304-0040-10
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated August 31, 2010, 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. Upon review, the Commission finds that Complainant's complaint was properly dismissed.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Maintenance Mechanic at the Agency's Network Distribution Center in Atlanta, Georgia. On June 24, 2010, Complainant filed an EEO complaint alleging that the Agency subjected him to discrimination and a hostile work environment on the bases of disability, age, and in reprisal for prior protected EEO activity when:
1. Beginning in June 9, 20091, Complainant was denied work;
2. On an unspecified date, Complainant was denied a transfer to the Atlanta Air Mail Center;
3. On June 22, 2010, Complainant received a phone call from the Office of Inspector General (OIG) where they made him feel like they felt he was "crying wolf;"
4. On an unspecified date, Complainant was denied disability retirement;
5. On an unspecified date, Complainant was denied unemployment;
6. On unspecified date(s), management slammed doors in his face;
7. On an unspecified date, Complainant was escorted out of the building like a criminal; and,
8. On an unspecified date, Complainant's badge was taken out of the system.
On July 20, 2010, the Agency issued a Partial Acceptance/Partial Dismissal of Complainant's complaint dismissing claims (1), (3), (4), and (5).2 As to claim (1), the Agency determined that Complainant had alleged the same claim in a previous complaint (Agency No. 1H-304-0030-09) and dismissed the claim pursuant to 29 C.F.R. � 1614.107(a)(1). Regarding claims (3) - (5), the Agency concluded that Complainant had alleged matters outside of the EEO process. Specifically, issues related to the OIG must be processed through that office and any claims related to the denial of his request for disability retirement must be brought to the attention of the Office of Personnel Management. Finally, any issues involving the denial of unemployment benefits must be processed through the state agency that handles unemployment claims. As a result, the Agency dismissed claims (1), (3), (4), (5) pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim. The Agency tentatively accepted claims (2), (6), (7), and (8) for investigation, but noted that Complainant needed to identify the dates these incidents occurred.
On August 9, 2010, Complainant submitted an affidavit providing the Agency with more information about the remaining claims. As to claim (2), Complainant identified "the first of the year 2010" as when he was denied a transfer to the Atlanta Air Mail Facility. As to claim (6), Complainant stated that the doors were slammed in his face on or about July 23, 2009. Regarding claim (7), Complainant provided five dates he was escorted out of the building spanning July 23, 2009 to October 30, 2009. Finally, in regard to claim (8), Complainant alleged that he became aware that his badge had been taken out of the system in September 2009.
On August 31, 2010, the Agency issued a decision dismissing the remaining claims in the complaint. The Agency found that Complainant did not contact an EEO Counselor until March 16, 2010, and thus, all of the above incidents were raised beyond the 45-day limitation period. As a result, the Agency dismissed these claims as untimely pursuant to 29 C.F.R. � 1614.107(a)(2).
CONTENTIONS ON APPEAL
On appeal, Complainant states that while several of the incidents he alleged are untimely, some of the incidents are still continuing. For instance, Complainant alleges that his badge still does not work to get in the building. Further, Complainant contends that he was told that once he had no restrictions, he would be able to transfer to the Air Mail Center. Additionally, Complainant alleges that when his doctor took him off of work each month, he was escorted out of the building by his supervisor and not allowed to work. Accordingly, Complainant requests that the Commission reverse the Agency's dismissal.
ANALYSIS AND FINDINGS
The Commission finds that the Agency properly dismissed the complaint. Specifically, as to claim (1), the Commission notes that the regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides that the Agency shall dismiss a complaint that states the same claim that is pending before or has been decided by the Agency or Commission. The record reveals that Complainant raised the identical claim of being denied work in July 2009, in a previous complaint already decided by the Agency (Agency No. 1H-304-0030-09). Thus, the Commission finds that the Agency properly dismissed this claim.
Regarding claims (3), (4), and (5), the Commission has held that an employee cannot use the EEO complaint process to lodge a collateral attack on another proceeding. See Wills v. Dep't of Def., EEOC Request No. 05970596 (July 30, 1998); Kleinman v. U.S. Postal Serv., EEOC Request No. 05940585 (Sept, 22, 1994); Lingad v. U.S. Postal Serv., EEOC Request No. 05930106 (June 25, 1993). The proper forums for Complainant to have raised his challenges to actions which involve the OIG, his disability retirement, and unemployment benefits are with the OIG, the Office of Personnel Management, and the state agency that handles unemployment benefits, respectively. It is inappropriate to now attempt to use the EEO process to collaterally attack actions which occurred in those venues. As a result, the Agency properly dismissed these claims pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim.
Finally, as to claims (2), (6), (7), and (8), the Commission finds that the Agency properly dismissed these claims as untimely. Specifically, as to claim (2), Complainant claimed in his affidavit that he was denied a transfer to the Atlanta Air Mail Center "late last year or early this year;" meaning late 2009 or early 2010. Complainant further added that he received an undated letter from the Maintenance Manager at the Atlanta Air Mail Center "around the first of the year 2010." Complainant contacted an EEO Counselor on March 16, 2010. Based on these timeframes, the Commission determines that this claim occurred outside the 45-day limitation period and was therefore untimely raised.
Regarding claim (6), Complainant affirmed that the Maintenance Manager slammed a door in his face on or about July 23, 2009. As to claim (7), Complainant claimed that he was escorted out of the building on July 23, 2009; July 30, 2009; August 30, 2009; September 1, 2009; and, October 30, 2009. Finally, in regard to claim (8), Complainant claimed that he realized his badge had been removed from the system in September 2009. Complainant did not raise these incidents with an EEO Counselor until March 16, 2010, well outside of the 45-day limitation period. Complainant provided no explanation or reason for the delay which would justify an extension of the regulatory limitation period. Thus, the Commission finds that the Agency properly dismissed these claims as untimely pursuant to 29 C.F.R. � 1614.107(a)(2).
CONCLUSION
Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 9-18 (Nov. 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
August 29, 2012
Date
1 Complainant later claimed that he was actually denied work on July 23, 2009.
2 The Agency first noted that the complaint contained both mixed and non-mixed claims and assigned separate complaint numbers (Agency No. 1H-304-0040-10 for non-mixed claims and Agency No. 1H-304-0024-10 for mixed claims). The Agency subsequently issued one decision identified as Agency No. 1H-304-0040-10 dismissing all of Complainant's claims.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120110134
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120110134