01986984_r
08-26-1999
Cameron Butler, )
Appellant, )
)
)
v. ) Appeal No. 01986984
) Agency No. 1F-941-0082-98
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
On September 10, 1998, appellant filed a timely appeal of an August 17,
1998 final agency decision which dismissed his complaint for failure to
state a claim and for failure to contact an EEO Counselor in a timely
manner.
In its final decision, the agency identified the issues of appellant's
June 2, 1998 complaint as whether appellant was discriminated against
on the bases of physical disability (carpal tunnel syndrome, back
injury) and in retaliation for prior EEO activity when: (1) appellant's
[Department of Labor's] Office of Workers' Compensation Programs (OWCP)
claim was denied; (2) appellant was given improper sitting assignments;
and (3) management failed to inform appellant that he had carpal tunnel
syndrome. In its final decision, the agency dismissed allegation (1)
on the grounds that the allegation failed to state a claim and on the
alternative ground of untimely EEO contact. In dismissing allegation
(2) for failure to contact an EEO Counselor timely, the agency noted
that appellant did not initiate EEO Counselor contact until April 16,
1998, although allegation (2) occurred in April 1993. Regarding its
dismissal of allegation (3) for untimely EEO contact, the agency stated
that appellant knew he had carpal tunnel syndrome in November 1996,
when he filed a claim for a work injury and that he noted in his claim
that the agency withheld the diagnosis of his condition.
Allegations (1) and (3)
The Commission finds that allegation (1) was properly dismissed
for failure to state a claim. Regarding allegation (3), it is the
determination of the Commission that the allegation is more appropriately
dismissed for failure to state a claim.
The record reveals that appellant allegedly sustained work injuries to his
back and both hands, including both thumbs in 1993, and that appellant
filed claims for the payment of workers' compensation benefits.
A November 1993 OWCP telephone report indicates that appellant
reported bilateral carpal tunnel syndrome. In a November 15, 1996
Notice of Occupational Disease and Claim for Compensation (Form CA-2)
submitted to the OWCP, appellant reported carpal/cubital tunnel syndrome.
The record reveals that appellant resigned from the agency in June 1993.
The record also reveals that appellant applied for Social Security
disability benefits in July 1993, and that in April 1996, a Social
Security Administration Administrative Law Judge found appellant to be
disabled from June 4, 1993.
Upon review, the Commission finds that allegations (1) and (3)
constitute a collateral attack on the workers' compensation process
and the administration of appellant's workers' compensation claims
and, therefore, fail to state cognizable claims. The Commission has
previously held that issues concerning an employee's OWCP claim are not
appealable to the Commission except in limited circumstances. Schultz v.
U.S. Postal Service, EEOC Request No. 05950173 (September 26, 1996).
Where a complainant alleges that the agency discriminated in a manner
pertaining to the merits of a workers' compensation claim then the
complaint does not state an EEO claim. Pirozzi v. Department of the Navy,
EEOC Request No. 05970146 (October 23, 1998)(allegedly false statements
made by agency to OWCP during OWCP's processing of a workers' compensation
claim goes to merits of compensation claim); Hogan v. Department of
the Army, EEOC Request No. 05940407 (September 29, 1994) (reviewing
an allegation that agency officials provided misleading statements to
OWCP would require the Commission to essentially determine what workers'
compensation benefits the complainant would likely have received); Reloj
v. Department of Veterans Affairs, EEOC Request No. 05960545 (June 15,
1998) (allegation 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). The Commission also does not
find that allegation (3) constitutes a failure by the agency to provide
information to the OWCP. Foster v. U.S. Postal Service, EEOC Appeal No.
05950693 (May 16, 1996)(failure by agency to submit required paperwork
to OWCP states a claim).
A complainant may not use the EEO process to launch a collateral attack
on the workers' compensation process. The Commission has recognized
very narrow exceptions to the general prohibition on collateral attacks.
See Story v. U.S. Postal Service, EEOC Request No. 05960314 (October
18, 1996); Lau v. National Credit Union Administration, EEOC Request
No. 05950037 (March 18, 1996). Allegations (1) and (3) do not fall
within these narrow exceptions. There is no evidence that allegations
(1) and (3) relate to an employment policy or practice, either by
the OWCP or by the agency. See Reloj v. Veterans Administration,
EEOC Request No. 05960545 (June 15, 1998); Agustin v. Department of
Labor, EEOC Request No. 05960127 (December 19, 1996). Rather, the
dismissed allegations relate to the general administration of workers'
compensation benefits and actions and decisions regarding benefits and,
as such, they fail to state a claim.
Allegation (2)
The record reveals that after an alleged work injury in March 1993,
appellant was offered a limited duty position by the agency in April
1993. Appellant declined the position, stating that he had a veterans
service disability and he could not perform the duties of the position.
Allegation (2) was dismissed by the agency on the grounds of untimely
EEO contact.
Generally, an aggrieved person must initiate contact with an EEO Counselor
within 45 days of the date of the matter alleged to be discriminatory.
See 29 C.F.R. �1614.105(a)(1). EEOC Regulation 29 C.F.R. �1614.105(a)(2)
permits the time period to be extended under certain circumstances.
Where a complainant alleges a failure to accommodate, the Commission has
held that a failure to accommodate constitutes a recurring violation,
that is, a violation that recurs anew each day that an employer fails
to provide an accommodation. See Mitchell v. Department of Commerce,
EEOC Appeal No. 01934120 (March 4, 1994). In addition, the Commission's
Regulations provide that the time limits in Part 1614 are subject to
waiver, estoppel and equitable tolling. See 29 C.F.R. �1614.604(c).
For example, the Commission has long held that an agency may not dismiss
a complaint based on an appellant's untimeliness, if that untimeliness is
caused by the agency's action in misleading or misinforming the appellant.
Elijah v. Department of the Army, EEOC Request No. 05950632 (March 28,
1996)(if agency officials misled appellant into waiting to initiate EEO
counseling, agency must extend time limit for contacting EEO Counselor);
Herrera v. U.S. Postal Service, EEOC Request No. 05891351 (September
28, 1989). However, although time limitations are subject to waiver,
estoppel and equitable tolling, complainants are required to act with
due diligence in pursuit of their claims or the doctrine of laches may
be applied. Sapp v. U.S. Postal Service, EEOC Request No. 05950666
(May 31, 1996); O'Dell v. Department of Health and Human Services,
EEOC Request No. 05901130 (December 27, 1990).
In the present complaint, appellant does not argue that he was not
aware of the applicable time limitations. Appellant asserts on
appeal, however, that his EEO contact was timely because he filed
"EEO complaints" in March, April and October 1993; in February and
June 1996; and in August 1997; and in April and June 1998. Appellant
also asserts that when he filed a complaint in October 1993, no final
decision was ever issued and the agency failed to re-open the matter.
Appellant also asserts that when he attempted to file a complaint,
he was informed that his complaint would be dismissed as untimely.
In light of appellant's assertions, and an unexplained April 2, 1993
Request for Counseling by appellant and an also unexplained February 16,
1996 letter from the agency to appellant referencing a closed counseling
file contained in the present record, it is unclear whether appellant
may have contacted an EEO Counselor prior to the April 16, 1998 contact
reflected in the Counselor's Report in the present complaint and the
nature and outcome of any alleged prior contacts. It is well-settled
that a complainant satisfies the criterion of EEO Counselor contact by
contacting an agency official logically connected with the EEO process
and by exhibiting an intent to begin the EEO process. See Floyd
v. National Guard Bureau, EEOC Request No. 05890086 (June 22, 1989).
In addition, the Commission has consistently held that the agency bears
the burden of obtaining sufficient information to support a reasoned
determination as to timeliness. Williams v. Department of Defense,
EEOC Request No. 05920506 (August 25, 1992). The Commission has also
held that the EEO Counselor must inquire into the reasons for the delay
when a complainant initiates counseling beyond the 45-day time limit
for doing so. Martin v. Department of Transportation, EEOC Request No.
05960642 (August 8, 1998); Franklin v. Department of Defense, EEOC Request
No. 05910767 (December 9, 1991). Accordingly, because the Commission is
unable to determine the propriety of the agency's dismissal of allegation
(2), we will remand the allegation to the agency for a supplemental
investigation on the issue of the timeliness of Counselor contact.
Appellant is advised that failure to cooperate with the agency's request
for information can result in the dismissal of his complaint pursuant
to the provisions of 29 C.F.R. �1614.107(g).
Consistent with the foregoing discussion, the agency's dismissal
of allegations (1) and (3) is AFFIRMED. The agency's dismissal of
allegation (2) is VACATED and the allegation is REMANDED to the agency
for a supplemental investigation.
ORDER
The agency is ORDERED to conduct a supplemental investigation and to
take the following actions:
1. The agency shall conduct an inquiry sufficient to enable it to make
a reasoned determination as to the timeliness of EEO Counselor contact
regarding allegation (2). The agency shall notify appellant that he has
fifteen (15) calendar days from receipt of the agency's notification in
which to provide the agency with clear information regarding any alleged
EEO contacts occurring prior to April 16, 1998, concerning allegation
(2). Appellant shall be requested to provide the dates, names, and
places of the alleged EEO contacts, and the nature of each of those
alleged contacts. Thereafter, the agency shall supplement the record
with affidavits and other relevant evidence from those EEO individuals
purportedly contacted by appellant. Such evidence shall include, but
is not limited to, the dates of the prior contacts, the nature of those
contacts and shall denote whether appellant exhibited an intent to begin
the EEO process and to pursue his allegation when the contacts were made.
If the agency is unable to obtain specific information from EEO officials
who may no longer be available, then the agency should so state and
obtain the required information from EEO officials having custody and
control of the records.
2. After completion of the investigation, the agency shall decide whether
to process or dismiss the remanded allegation. 29 C.F.R. �1614.106 et seq.
The supplemental investigation and issuance of a notice of processing
and/or new final agency decision must be completed within 45 (forty-five)
calendar days of the date this decision becomes final.
A copy of the notice of processing and/or a copy of the new final agency
decision must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant also has the right
to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant has the right to file a civil action on the underlying
complaint in accordance with the paragraph below entitled "Right to File
A Civil Action." 29 C.F.R. �� 1614.408 and 1614.409. A civil action for
enforcement or a civil action on the underlying complaint is subject to
the deadline stated in 42 U.S.C. �2000e-16(c) (Supp. V 1993). If the
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (T0993)
This decision affirms the agency's final decision in part, but it also
requires the agency to continue its administrative processing of a
portion of your complaint. You have the right to file a civil action
in an appropriate United States District Court on both that portion of
your complaint which the Commission has affirmed AND that portion of the
complaint which has been remanded for continued administrative processing.
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. In the alternative, you may file
a civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the
date you filed your complaint with the agency, or your appeal with the
Commission, until such time as the agency issues its final decision
on your complaint. 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 (Z1092)
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:
August 26, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations