Stephen J. King, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionFeb 16, 2007
0120065108 (E.E.O.C. Feb. 16, 2007)

0120065108

02-16-2007

Stephen J. King, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Stephen J. King,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01200651081

Agency No. 4F900016106

DECISION

Complainant filed a timely appeal with this Commission from the

agency's decision dated August 1, 2006, dismissing his complaint of

unlawful employment discrimination in violation of 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 pursuant to 29

C.F.R. � 1614.107(a)(1) for failure to state a claim. In a complaint

dated June 24, 2006, complainant alleged that he was subjected to

discrimination on the bases of disability (back injury and chronic leg

edema), age (D.O.B. 11/01/48), and reprisal for prior protected EEO

activity under an EEO statute that was unspecified in the record when:

1. He learned that his OWCP claim had been denied based on false

information and documents provided by the agency;

2. He was denied access to his medical file in Injury Compensation; and

3. His supervisor yells at him in public.

With respect to claim 1 regarding complainant's OWCP claim, the proper

forum for complainant to have raised his dissatisfaction and concerns

was regarding his OWCP claim, was within the OWCP process itself. It is

inappropriate to now attempt to use the EEO process to collaterally

attack actions which occurred during that process. The Commission has

held that an employee cannot use the EEO process to lodge a collateral

attack on another proceeding. See Willis v. Department of Defense,

EEOC Request No. 05930106 (June 25, 1993).

Concerning claim 2, the record indicates that complainant was required to

follow internal office procedure in order to have access to his files.

Complainant's request for access was denied only pending complainant's

following proper procedure to view the files. In claim 3, complainant

failed to demonstrate that the alleged agency conduct harmed a term,

condition or privilege of complainant's employment. The Commission finds,

therefore, that the complaint fails to state a claim under the EEOC

regulations because complainant failed to show that he suffered harm or

loss with respect to a term, condition, or privilege of employment for

which there is a remedy. See Diaz v. Department of the Air Force,

EEOC Request No. 05931049 (April 21, 1994). Moreover, we find that

complainant has failed to demonstrate that the alleged agency conduct

was so severe and pervasive to alter the conditions of his employment.

Accordingly, the agency's final decision dismissing complainant's

complaint is affirmed for the reasons set forth herein.

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

_ February 16, 2007

_________________

Date

1 Due to a new data system, this case has been redesignated with the

above referenced appeal number.

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0120065108

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

3

0120065108