01992620
04-12-2000
Gaery D. Goodman, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Gaery D. Goodman, )
Complainant, )
)
v. ) Appeal No. 01992620
) Agency No. 4-G-780-0382-98
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
_______________________________)
DECISION
The Commission finds that the agency's January 12, 1999 decision
dismissing Complainant's complaint on the basis of failure to state
a claim is not proper pursuant to the provisions of 64 Fed. Reg. 37,
644, 37,656 (1999) (to be codified and hereinafter referred to as 29
C.F.R. �1614.107(a)(1)).<1>
The record shows that Complainant sought EEO counseling alleging that he
had been discriminated against on the bases of age, physical disability,
and reprisal when his supervisor purportedly wrote derogatory remarks
on an accident report (Form 1769), which delayed his receipt of prompt
medical care. Complainant further alleged that as a result of his
supervisor's actions he was forced to continue working while enduring
great physical pain, which also �caused a new and further injury�.
Complainant filed a formal complaint alleging that he had been
discriminated against on the bases of age and reprisal when on July
16, 1998, his supervisor wrote derogatory remarks on a Form 1769 which
delayed his getting proper medical care. Complainant further alleged
that his �condition grew much worse and [he] suffered a great deal of
pain due to his [supervisor's] vindictiveness�.
The agency issued a final decision dismissing the complaint on the grounds
of failure to state a claim. The agency noted that although Complainant's
claim was controverted, the Department of Labor's Office of Workers
Compensation (OWCP) ultimately accepted his claim on August 6, 1998.
The Commission has long held that an agency has an obligation to
controvert an employee's OWCP claim when there is a dispute as to an
employee's entitlement. As a general rule, controversion of an OWCP
claim does not affect a term, condition or privilege of employment.
See Hall v. Department of the Treasury, EEOC Appeal No. 01945595 (February
23, 1995.
Upon review, the Commission determines that the claim raised in the
instant complaint constitutes a collateral attack on the OWCP process and
therefore fails to state a cognizable claim. See Reloj v. Department of
Veterans Affairs, EEOC Request No. 05960545 (June 15, 1998) (claim that
agency's provision of false information to the OWCP resulted in denial
of benefits is a collateral attack on OWCP's decision and, thus, fails to
state a claim). Accordingly, the agency's decision to dismiss the instant
complaint for failure to state a claim was proper and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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 (S1199)
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:
April 12, 2000
Date
Carlton
M.
Hadden,
Acting
Director
Office of Federal Operations
1 On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.