Ralph Harper,
Complainant,

v. 

John E. Potter,
Postmaster General,
United States Postal Service,
Agency.

Appeal No. 01200646141

Agency No. 1J602002406

DECISION

Complainant filed a timely appeal with this Commission from the
agency's decision dated July 5, 2006, 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. 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.  In his complaint,
complainant alleged that he was subjected to discrimination on the
bases of race (African-American), age (D.O.B. 02/19/52), and reprisal
for prior protected EEO activity under Title VII of the Civil Rights
Act of 1964 when his position as Group Leader was abolished in 1992,
and in February 2006, he learned that the position was reinstated as a
result of a grievance and another employee with less seniority than he
was given the position as a result of the settlement.

The record indicates that complainant did not file a grievance nor an
EEO complaint at the time that his position was abolished. As such,
given the 14 years that have passed, complainant is untimely in raising
the abolishment of the position. 29 C.F.R.  1614.107(a)(2).

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).  The proper forum for complainant
to have raised his challenges to actions which occurred during the
grievance proceeding was at that proceeding itself.  It is inappropriate
to now attempt to use the EEO process to collaterally attack actions
which occurred during the grievance process.  The Commission notes that
complainant also filed a grievance regarding the failure to place him in
the position and the grievance was denied.  Further, to the extent that
complainant is challenging the grievance filed by the other employee and
the resulting settlement agreement; he is collaterally challenging the
grievance system. As such, the Commission has no jurisdiction over the
settlement agreement and the terms arrived at therein.   The agency's
dismissal of the complaint 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

January 9, 2007

__________________
Date

1 Due to a new Commission data system, this case has been redesignated
with the above-referenced appeal number.
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2
0120064614

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C.  20036

3
0120064614