0120120834
12-20-2012
James F. Eggleston, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Western Area), Agency.
James F. Eggleston,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Western Area),
Agency.
Appeal No. 0120120834
Agency No. 4E-800-0187-11
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated October 17, 2011, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Modified Letter Carrier at the Agency's Post Office facility in Glendale, Colorado.
On September 24, 2011, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of disability (on-the-job injury) and reprisal for prior protected EEO activity under Section 501 of the Rehabilitation Act of 1973 when:
1. Management has not complied with provisions of the July 11, 2011, pre-arbitration settlement or the August 29, 2011, Step B Decision to return Complainant to work with compensation and benefits.
2. Complainant was not paid by the Office of Worker's Compensation Program (OWCP);
3. On July 22, 2011, Complainant received a letter dated July 20, 2011, which provided a separation disability personnel action was in process on August 5, 2011, Complainant was told that it had to be approved by the Agency's Headquarters;
4. On July 23, 2011, Complainant received a notice of involuntary administrative salary offsets under the Debt Collection Act;
5. Complainant was not provided with copies of his files per his request on August 5, 2011.
6. Complainant's pre-approved contractual bid annual leave requests for October 2011 and December 2011 had not been approved or disapproved;
7. Management has failed to comply with the Federal Employee Compensation Act particularly in related to his OWCP claim; and
8. The Privacy Act was violated when his medical documentation was provided to the Agency's Debt Court.
The Agency issued its final decision. With regard to claims (1), (2), (4), (7) and (8), the Agency dismissed these events pursuant to 29 C.F.R. � 1614.107(a)(1). The Agency indicated with claim (1), Complainant alleged non-compliance with a grievance settlement agreement and a Step B grievance decision. The Agency noted that such a claim was not within the EEOC's jurisdiction and constituted a collateral attack on the grievance process. The Agency also found that claims (2) and (7) alleged claims regarding the OWCP process. Finally, as to claims (4) and (8), the Agency indicated that Complainant alleged discrimination with relation to the Debt Collection Act and the Privacy Act when his medical documentation was released to the Debt Court. The Agency noted that such claims constituted a collateral act on the proceeding before the Debt Collection Act process.
As to claims (3), (5), and (6), the Agency found that these events failed to state a claim. The Agency noted that Complainant failed to who he was harmed by the Agency's providing him a letter; not providing him with copies of the file for which he asked; and his frustration regarding his leave requests. The Agency indicated that with claim (6), Complainant has not shown that he was denied leave. As such, the Agency found that Complainant failed to state a claim.
This appeal followed.
ANALYSIS AND FINDINGS
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. Dep't of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994).
Upon review, we find that the Agency properly dismissed claims (3), (5) and (6). We note that Complainant failed to show he was harmed by the alleged events. Specifically, Complainant has not indicated that he was actually separated from the Agency or denied leave. Further, Complainant has not shown that he was harmed by the files with respect to a term, condition or privilege of his employment. As such, we determine that the Agency properly dismissed claims (3), (5) and (6).
We note that the Agency also dismissed claims (1) in which Complainant alleged that the Agency violated an arbitration settlement and a Step B Decision. Also, in claims (2) and (7), Complainant asserted discrimination regarding the processing of his OWCP 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. Dep't of Def., EEOC Request No. 05970596 (July 30, 1998); Kleinman v. U.S. Postal Serv., EEOC Request No. 05940585 (Sept. 22, 1994); Lingad v. U.S. Postal Serv., EEOC Request No. 05930106 (June 25, 1993). The proper forum for Complainant to have raised his challenges to actions which occurred during the arbitration proceeding was at that proceeding itself. It is inappropriate to now attempt to use the EEO process to collaterally attack actions which occurred during the arbitration process. Similarly, in claims (2) and (7), Complainant alleged discrimination with regard to his OWCP claim. We find that such claims regarding OWCP constitute a collateral attack upon the OWCP process, and therefore fail to state a claim. See Federico v. U.S. Postal Serv., EEOC Request No. 05A01285 (Sept. 26, 2002). Accordingly, the Agency's final decision dismissing claims (1), (2), and (7) was appropriate.
Finally, the Agency dismissed claims (4) and (8) regarding events related to the Debt Collection Act. The Debt Collection Act, 31 U.S.C. 3711 et seq, mandates that monetary disputes involving an agency of the United States government and any claimed debtor must be resolved through the provisions of the Debt Collection Act. The Commission has previously held that challenges to agency's actions under the Debt Collection Act are not within the scope of the EEO complaint process and the Commission's jurisdiction. See Baughman vs. Dep't of Army, EEOC Appeal No. 01900865 (Feb. 26, 1990). The proper forum for Complainant to challenge the appropriateness of the collection process and validity of his debt is through the administrative process of the Debt Collection Act. In claim (4), Complainant asserted that he was discriminated when he received a notice under the Debt Collection Act. We find that such an allegation is not within the scope of its jurisdiction, and, as such, fails to state a claim. Amato v. Dep't of the Army, EEOC Request No. 0520070240 (July 18, 2007).
In claim (8), Complainant asserted that he was discriminated against when his medical documentation was provided to the Agency's Debt Court. We note that the crux of this claim is that Complainant's medical documentation was improperly released. However, the release of the medical information, in and of itself, is the alleged harm. We remind the Agency that, generally, medical information must be kept confidential. See Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the Americans with Disabilities Act (Guidance), EEOC Notice No. 915.002 (rev. Oct. 17, 2002) (describing the limited exceptions to the medical confidentiality requirements). Therefore, we find that the dismissal of claim (8) was not appropriate for Complainant has stated a claim of discrimination in violation of the Rehabilitation Act. Therefore, we reverse the Agency's dismissal of claim (8).
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the dismissal of claims (1) - (7). However, we REVERESE the dismissal of claim (8) and REMAND claim (8) for further processing in accordance with the ORDER below.
ORDER (E0610)
The Agency is ordered to process the remanded claim (namely, claim (8)) 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 (K0610)
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 (M0610)
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), at 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 (T0610)
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 (Z0610)
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
December 20, 2012
__________________
Date
2
0120120834
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120120834