01a53097
07-15-2005
Gary E. Kruger, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Gary E. Kruger v. United States Postal Service
01A53097
July 15, 2005
Gary E. Kruger,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A53097
Agency No. 4H335003305
DECISION
Complainant filed a timely appeal with this Commission from the
agency's decision dated February 15, 2005, dismissing 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. In his complaint, complainant alleged that he was subjected
to discrimination on the basis of physical disability (neck and right
shoulder) and mental disability (stress) when:
In a letter dated December 14, 2005 to the Office of Workers' Compensation
Program complainant's supervisor (S1) stated that complainant's stress
was �most likely self-generated� and not work related.
On December 23, 2004, S1 sent a limited-duty job offer to complainant
before complainant was cleared by his doctor to return to work.
The agency dismissed both claims in the instant complaint pursuant to
29 C.F.R. � 1614.107(a)(1) for failure to state a claim. Specifically,
the agency determined that claim (1) represented a collateral attack
on the OWCP process and therefore failed to state a justiceable claim
under EEOC's regulations. With regard to claim (2), the agency found
that complainant failed to show how he suffered any harm to the terms,
conditions, or privileges of employment as a result of his supervisor's
actions. Consequently, the agency determined that claim (2) failed to
state a claim.
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in
relevant part, that an agency shall dismiss a complaint that fails to
state a claim. An agency shall accept a complaint from any aggrieved
employee or applicant for employment who believes that he or she
has been discriminated against by that agency because of race, color,
religion, sex, national origin, age or disabling condition. 29 C.F.R. ��
1614.103, .106(a). The Commission's federal sector case precedent has
long defined an "aggrieved employee" as one who suffers a present harm
or loss with respect to a term, condition, or privilege of employment
for which there is a remedy. Diaz v. Department of the Air Force,
EEOC Request No. 05931049 (April 21, 1994).
The first claim arose from a statement S1 made in response to an
investigation concerning complainant's OWCP claim. It is well-settled
that an employee may not use the EEO complaint process to lodge
a collateral attack on the grievance process. Kleinman v. United
States Postal Service, EEOC Request No. 05940585 (September 22, 1994);
Lingad v. United States Postal Service, EEOC Request No. 05930106 (June
24, 1993). In the instant case, S1's statement was provided in the
context of complainant's OWCP claim, and represented S1's opinion as
to how the injury was sustained. The Commission finds that may not use
the EEO process to collaterally attack the processing of an OWCP claim,
and that the proper forum for raising any such complaints, is the OWCP
process itself. Accordingly, we find that the agency properly dismissed
claim one (1) for failure to state a claim.
Complainant contends in his second claim that he was aggrieved when his
supervisor offered him a job because he was not yet cleared to return
to work by his doctor. The offer of a limited duty position may have
had caused complainant further stress, but there is no evidence in the
record that complainant suffered any harm to his employment status by
rejecting the offer. It appears from the record that the offer was made
in an effort to accommodate the complainant's condition, and that he was
free to reject it, as he did. As complainant suffered no harm to the
terms, conditions, or privileges of his employment as a result of S1's
actions, the Commission finds that claim two (2) was properly dismissed
for failing to state a claim.
The agency's final decision is accordingly 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
July 15, 2005
__________________
Date