01a60082_r
03-07-2006
Jeffrey Fleming v. United States Postal Service
01A60082
March 7, 2006
.Jeffrey Fleming,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A60082
Agency No. 4B-018-0075-05
DECISION
Upon review, the Commission finds that the agency's decision dated August
17, 2005, dismissing complainant's complaint for failure to state a claim
is proper pursuant to 29 C.F.R. � 1614.107(a)(1). In his complaint, dated
August 1, 2005, complainant alleged discrimination based on disability
when on June 6, 2005, he became aware that his former postmaster submitted
an altered affidavit to the Department of Labor, Office of Workers'
Compensation Programs (OWCP), regarding his claim for compensation.
The agency stated that on the relevant incident date, complainant received
OWCP's response to his Freedom of Information Act request concerning
his ongoing OWCP merit review. In the documents provided by the OWCP,
complainant became aware that an affidavit written in response to his
prior EEO complaint submitted to the OWCP for adjudication purposes was
dated August 6, 2004, while he claimed the affidavit was originally
dated May 2, 2000. Thus, complainant claimed that the document was
falsified. The agency indicated that on August 26, 2004, the OWCP denied
complainant's request for reconsideration of its prior decision dated
June 12, 2003, denying his claim for compensation.
The Commission has held 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 a claim
within the purview of the EEOC Regulations. See Pirozzi v. Department
of the Navy, EEOC Request No. 05970146 (October 23, 1998). Thus, the
Commission finds that the instant complaint fails to state a claim.
Because of our disposition, we do not address the agency's alternative
reason for dismissing the complaint for stating the same claim as
previously raised by complainant.
Accordingly, the agency's decision is 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
March 7, 2006
__________________
Date