01a04625
02-15-2001
Daniel A. Douglas, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Daniel A. Douglas v. United States Postal Service
01A04625
February 15, 2001
.
Daniel A. Douglas,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A04625
Agency Nos. 4-C-442-0064, 4-C-442-0077-99
Hearing Nos. 220-99-5335X, 220-99-5336X
DECISION
Complainant timely initiated an appeal from a final agency action
dated May 8, 2000, concerning 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. The appeal
is accepted pursuant to 29 C.F.R. � 1614.405. Complainant alleges he
was discriminated against on the bases of disability (post traumatic
stress disorder, major depression, and unspecified disability) and in
reprisal for prior EEO activity when:
Complainant's supervisor and the injury compensation specialist
controverted his OWCP claim; and
Complainant received a letter which informed him that his OWCP claim was
adjudicated not to be job related and ordered him to return to duty.
Complainant filed two formal complaints on March 2, 1999, which were
consolidated by the agency. After an investigation was conducted,
complainant requested a hearing before an EEOC Administrative Judge (AJ).
On April 4, 2000, the AJ issued a decision without a hearing finding no
discrimination.
With regard to issue (1), the AJ found that this issue should be dismissed
pursuant to the regulation set forth at 29 C.F.R. � 1614.107(a)(1),
for failure to state a claim. Specifically, the AJ stated that where a
complainant alleges that the agency discriminated in a manner pertaining
to the merits of the workers' compensation claim, for example, by
submitting paperwork containing allegedly false information, then the
complaint does not state an EEO claim. Brown v. United States Postal
Service, 05980128 (July 22, 1999). In addition, with regard to issue (1),
the AJ proceeded to issue a finding of no discrimination. With regard to
issue (2), the AJ found that complainant was not an aggrieved employee.
On the merits of the complaint, the AJ concluded that complainant
failed to establish a prima facie case of discrimination, stating that
complainant failed to show that he suffered a harm or loss to a term,
condition, or privilege of employment. The AJ noted that complainant had
been off duty for almost seven months and had submitted no documentation
to cover his absence. The AJ stated that once complainant's Office
of Workers' Compensation Programs (OWCP) claim was not approved, the
agency had nothing to justify complainant's absence from duty. The AJ
concluded that although complainant disagreed with the return to duty
letter, he failed to show an adverse employment action.
The agency's final action implemented the AJ's decision.
With regard to issue (1), we find that this issue was properly dismissed.
It is well-settled that an agency has an obligation to controvert an
employee's workers' compensation claim when there is a dispute as to an
employee's entitlement. As a general rule, controversion of a workers'
compensation claim does not affect a term, condition, or privilege of
employment so as to render a person aggrieved. See Hall v. Department
of Treasury, EEOC Appeal No. 01945595 (February 23, 1995).
With regard to issue (2), we find that this issue was improperly defined.
According to the record, complainant had been off work since May 19,
1998, and filed an occupational injury claim with OWCP on May 20, 1998.
Complainant's OWCP claim was denied on November 5, 1998. On December
7, 1998, the agency sent complainant a letter informing him that since
his OWCP claim was determined not to be job related, he was to return
to work in Operations Programs Support (OPS) by December 21, 1998.
Complainant alleges that the return to duty order was discriminatory
because he had not been released by his physician to return to work.
Specifically, complainant states that the position in OPS did not
conform to job related medical restrictions as determined by his doctors.
Complainant argues that in not considering the restrictions imposed by
his medical condition, the agency failed to reasonably accommodate his
disability. Thus, we find that issue (2) involves an alleged denial of
a reasonable accommodation and, therefore states a processable claim.
Accordingly, the agency's dismissal of issue (1) was proper and
is AFFIRMED. The agency's dismissal of issue (2) was improper and is
VACATED and issue (2) is REMANDED for further processing in accordance
with the Order below.
ORDER
The agency is ordered to perform the following:
Within 15 calendar days of the date this decision becomes final, contact
the relevant EEOC District Office in writing to schedule a hearing on
the merits of the remanded claims.
Send a copy of the letter referenced in provision 1 of this Order to
complainant and to the Compliance Officer as referenced herein.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0900)
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 complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement of
the order. 29 C.F.R. � 1614.503(a). The complainant 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. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively,
the complainant 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. �� 1614.407 and 1614.408. 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
complainant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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 (T0900)
This decision affirms the agency's final decision/action 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 within ninety (90) calendar
days from the date that you receive this decision 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. 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 (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 15, 2001
__________________
Date