0120091696
07-14-2009
Guillermo Mojarro, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Guillermo Mojarro,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120091696
Agency No. 4F926003909
DECISION
Complainant filed a timely appeal with this Commission from the
agency's decision dated February 12, 2009, 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 and harassment on the bases of disability (heel spurs,
stress, and anxiety) and reprisal for prior protected EEO activity when:
1. On December 3, 2008, complainant was denied a reasonable accommodation
when he was not permitted to return to work in a different facility than
his Postmaster;
2. On December 8, 2008, complainant was denied reimbursement for travel
expenses he incurred as an EEO representative;
3. On December 11, 2008, the Postmaster initiated an Office of Inspector
General (OIG) investigation on complainant;
4. On December 11, 2008, management controverted complainant's Office
of Workers' Compensation Program (OWCP) claim; and
5. On or about December 24, 2008, management obtained complainant's
medical records.
The agency dismissed the entire complaint pursuant to 29 C.F.R. �
1614.107(a)(3) for complainant had alleged the same matter in a civil
action. In addition, the agency dismissed claims (2), (3), (4) and (5)
pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim. The
agency indicated that, in claim (2), complainant was the representative
in an other employee's case. Based on Commission precedent, complainant
has no standing to bring forth this claim. Further, the agency dismissed
claim (3) finding that being the subject of an internal investigation
does not render an individual aggrieved. The agency found that claim
(4) failed to state a claim in that it was a collateral attack on the
OWCP process. Finally, claim (5) was dismissed because the agency
required the medical documentation to return complainant to work.
Therefore, complainant failed to state a claim.
Complainant appealed requesting that reverse the agency's dismissal.
In addition, complainant noted that the agency had been subjecting him
to a hostile work environment. The agency requests that we uphold its
dismissal.
The regulation set forth at 29 C.F.R. � 1614.107(a)(3) allows for the
dismissal of a complaint that is pending in a United States District
Court in which the complainant is a party. The purpose of this provision
is to avoid duplicative investigation of identical complaints by two
different fact-finding bodies. However, the Commission has held that in
cases where the civil action has been dismissed without prejudice, the
administrative complaint under 29 C.F.R. � 1614.105 may be reinstated.
Jones v. Department of Justice, EEOC Request No. 05910970 (March
19, 1992). Upon review of the record, we find that the agency has
failed to show that the instant complaint is the same matter pending in
complainant's civil action filed in the district court. The civil action
filed by complainant on November 4, 2008, involved a claim of harassment
from February 2007. There is no indication that complainant's civil
action included events the occurred after the filing of the civil action.
As such, we find that the agency's dismissal of the entire complaint
was not appropriate.
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).
As to claim (2), complainant argued that he was denied travel expenses
when he served as a representative for a co-worker in their EEO complaint.
The Commission has previously stated that the right to raise such
matters lies with the claimant and not his or her representative, and,
as such, a representative does not have standing with regard to those
claims. Sessoms v. United States Postal Serv., EEOC Appeal No. 01973440,
et al. (June 11, 1998). As such, we find that the agency correctly
dismissed this claim for failure to state a claim.
In claim (3), complainant asserted that the Postmaster initiated an
OIG investigation against him. In addition, in claim (4), complainant
asserted that the agency subjected him to discrimination when management
controverted his OWCP claim. The Commission determines that the
agency properly dismissed these claims for failure to state a claim.
The Commission has held that an employee cannot use the EEO complaint
process to lodge a collateral attack on another proceeding. See Wills
v. Department of Defense, EEOC Request No. 05970596 (July 30, 1998);
Kleinman v. United States Postal Serv., EEOC Request No. 05940585
(September 22, 1994); Lingad v. United States Postal Serv., EEOC Request
No. 05930106 (June 25, 1993). The proper forum for complainant to
have raised his challenges to actions related to a potential criminal
proceeding, of which an office of Inspector General (IG) investigation is
a part, is generally within that proceeding itself. The proper forum for
complainant to have raised his challenges to actions which occurred during
the OWCP process was within that forum itself. It is inappropriate to
now attempt to use the EEO process to collaterally attack these actions.
As such, we affirm the dismissal of claims (3) and (4).
Finally, in claim (5), complainant asserted that the agency improperly
obtained complainant's medical records. After a review of the agency's
final decision, the Commission finds that the agency has addressed the
merits of complainant's complaint without a proper investigation as
required by the regulations. We find that the agency's articulated
reason for the action in dispute, i.e., that it required the medical
documentation to determine if complainant could return to work, goes
to the merits of complainant's complaint, and is irrelevant to the
procedural issue of whether he has stated a justiciable claim under
the Rehabilitation Act. See Osborne v. Department of the Treasury, EEOC
Request No. 05960111 (July 19, 1996); Lee v. United States Postal Service,
EEOC Request No. 05930220 (August 12, 1993); Ferrazzoli v. United States
Postal Service, EEOC Request No. 05910642 (August 15, 1991). Therefore,
we find that the agency's dismissal of claim (5) was not appropriate.
Therefore, upon review of the record, the Commission affirms the
dismissal of claims (2), (3) and (4). However, the Commission reverses
the dismissal of claims (1) and (5) and remands these claims back to
the agency for further processing as ordered below.
ORDER (E0408)
The agency is ordered to process the remanded claims (namely claims
(1) and (5)) in accordance with 29 C.F.R. � 1614.108. The agency shall
acknowledge to the complainant that it has received the remanded claims
within thirty (30) calendar days of the date this decision becomes final.
The agency shall issue to complainant a copy of the investigative file
and also shall notify complainant of the appropriate rights within one
hundred fifty (150) calendar days of the date this decision becomes
final, unless the matter is otherwise resolved prior to that time.
If the complainant requests a final decision without a hearing, the
agency shall issue a final decision within sixty (60) days of receipt
of complainant's request.
A copy of the agency's letter of acknowledgment to complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K1208)
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 77960, Washington,
DC 20013. 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) (1994 & Supp. IV 1999).
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 (M1208)
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 77960,
Washington, DC 20013. 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 (R0408)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. 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 filed your appeal with the
Commission. 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. Filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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 14, 2009
__________________
Date
2
0120091696
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
5
0120091696