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Perry v. United States Postal Service

August 25, 2005

JOSEPH L. PERRY PLAINTIFF
v.
UNITED STATES POSTAL SERVICE, ET AL. DEFENDANTS



ORDER

Plaintiff filed this action pro se alleging that he was discriminated on the bases of his race, color, sex, age and in retaliation for filing previous charges of discrimination when he was denied employment with the United States Postal Service (USPS). Named as defendants are John Potter, Postmaster General of the USPS, Cari Dominguez, Chairperson of the U.S. Equal Employment Opportunity Commission (EEOC), the National Association of Letter Carriers (NALC), the American Postal Workers Union (APWU) and the National Rural Letter Carriers Association (NRLCA).

This case is the latest in a line of actions plaintiff has brought concerning the failure of USPS to hire him as a Rural Carrier Associate (RCA). Defendants have filed motions to dismiss. Counsel was appointed for plaintiff and has filed responses to the motions, with the exception of the EEOC's motion to dismiss.

Plaintiff has, since at least 1987, sought employment with the USPS as a RCA. According to the USPS, applicants for the position take a qualifying examination which is graded by the National Test Administration Center (NTAC). The NTAC enters the scores on register cards and returns the cards to the postal installation that initiated the examination. The register cards are arranged by Veterans preference and test score, highest to lowest. When a vacancy occurs, the register cards of the three top scorers are pulled. Applicants retain eligibility for twenty-four months following when their names are placed on the register unless a request for an extension is made in writing during the last six months of eligibility.

Plaintiff took the entrance exam and was first placed on the active register on April 17, 1987. Plaintiff took another postal entrance exam on March 20, 1997. The USPS states that plaintiff was issued a notice for a job interview on August 2, 1999, pertaining to a RCA position at the Marianna Post Office. Plaintiff filed a formal EEO complaint on January 25, 2000, in which he alleged that he was not selected in August, 1999, for a RCA position at the Marianna Post Office. He alleged discrimination on the bases of race, color, sex, age and retaliation. He further alleged that he had not been chosen for a number of other positions that have been available not only in Marianna but in other counties. He asked that the January 25, 2005, complaint, No. 4G-720-0010-00, be included with previous complaints filed during 1999, that is case numbers 4G-720-0035-99 and 4G-720-0120-00.

On September 9, 2002, the USPS issued a final agency decision in Case No. 4G-720-0010-00, noting that plaintiff, whose name was first on the worksheet, failed to respond to a Call-In notice with regard to the August, 1999 position at Marianna. The second person refused the position, and the third person, Connie Broadway, an African-American female, was selected.

USPS found that plaintiff had failed to establish a prima facie case of discrimination on the bases of race, color, sex and age and a prima facie case of reprisal. The Final Agency Decision notified plaintiff of his right to appeal to the Office of Federal Operations, EEOC, (OFO) within 30 calendar days of receipt of the decision.

Plaintiff filed an appeal to the OFO and on June 16,2004, the OFO issued its decision in Case No. 4G-720-0100-00 affirming the agency's final decision. Plaintiff filed a request for reconsideration to OFO on July 19, 2004. On August 26, 2004, OFO found that the request failed to meet the criteria of 29 C.F.R. § 1614.405(b)*fn1 and denied plaintiff's request for reconsideration. Plaintiff filed this action on November 29, 2004.

Motion of EEOC to Dismiss

With respect to the EEOC, plaintiff contends that the EEOC violated his due process rights with regard to the handling of the complaints. The EEOC contends that these allegations fail to state a claim against the EEOC. Plaintiff has not responded.

It is clear that the EEOC may not be sued regarding the processing of a discrimination complaint. The jurisdiction of Title VII and the ADEA is limited to actions brought by persons against employers. See McCottrell v. E. E. O.C., 726 F. 2d 350, 351(7th Cir. 1984)) (well settled that Title VII does not provide either express or implied cause of action against EEOC to challenge its investigation and processing of charge); Adams v. United States E.E.O.C., 932 F. Supp. 660, 664 (E. D. Pa. 1996).

Thus, the EEOC's motion to dismiss is granted.

Motions of NRLCA, APWU, AND NALC ("Unions") to Dismiss

The various labor unions have filed motions to dismiss. With regard to the unions, plaintiff alleges that they have entered into contracts that allowed USPS employees and union members to manipulate these regulations and agreements to where plaintiff['s] rights under the United States Constitution of Due Process and equal protection are violated and plaintiff['s] rights under the Civil Rights Acts of 1964, Title VII, 42 U.S.C. § 2000e et seq. are violation. Def. USPS employees are allowed under the above labor contracts to pick, choose and hire new employee[s] who have not taken or passed postal examinations as plaintiff was required to do in order to be considered for postal employment. These new employee[s] are hired under the cover that they are emergency appointments, noncareer employees (casuals and transitional positrons). Under the positions of rural mail carriers these positions (rural carriers relief (RCR's) Auxiliary Rural Carriers and Rural Carrier Associates (RCA's) are filled from temporary or casual people who have not taken the test and are allowed to apply for positions noncompetitively. This violates plaintiff['s] rights and is a decimator process.

There is no dispute that plaintiff failed to file an EEO complaint against any of the unions or name the unions in his EEO complaint. Thus, plaintiff failed to exhaust his remedies under Title ...


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