Guillermo Mojarro, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionJul 14, 2009
0120091696 (E.E.O.C. Jul. 14, 2009)

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