01993906
08-08-2000
John C. O'Dell, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
John C. O'Dell v. United States Postal Service
01993906
August 8, 2000
John C. O'Dell, )
Complainant, )
)
v. ) Appeal No. 01993906
) Agency No. 1-B-145-0004-99
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
The Commission finds that the agency's March 10, 1999 decision
dismissing the complaint on the grounds of failure to state a claim,
and untimely EEO counselor is proper pursuant to the provisions of 64
Fed. Reg. 37,644, 37,656 (1999) (to be codified and hereinafter referred
to as 29 C.F.R. �1614.107(a)(1) and (2)).<1>
The record shows that Complainant sought EEO counseling on October 8,
1998, claiming that he had been discriminated against on the basis
of reprisal. Informal efforts to resolve his concerns were unsuccessful.
Subsequently, Complainant filed a formal complaint claiming that he had
been discriminated against on the basis of reprisal on an �ongoing� basis.
Complainant specifically claimed that:
(1) via correspondence dated March 4, 1998, the U.S. Department of
Labor OWCP denied his claim for compensation concerning an incident
of purported assault against him on April 23, 1997, because of false
information provided by the agency;
(2) on March 6, 1998, a document concerning his April 23, 1997 incident
was removed from the Safety Office and returned altered; and
(3) postal management refused to investigate the April 23, 1997 incident
when he reported it as an assault, most recently on September 21, 1998.
The agency issued a final decision dismissing the complaint on the grounds
of failure to state a claim, untimely EEO Counselor contact, and because
the matters raised therein were raised in a prior complaint.
In claim (1), Complainant stated that his OWCP claim was denied because
of false information provided by the agency. We find that the agency
properly dismissed this claim for failure to state a claim because
it constitutes a collateral attack on the decision making process of
another forum (OWCP) and, as such, fails to state a cognizable claim.
See Reloj v. Department of Veterans Affairs, EEOC Request No. 05960545
(June 5, 1998); Lingad v. USPS, EEOC Request No. 05930106 (June 24, 1993).
Such claims are more properly addressed in that forum, rather than
in the EEO complaint process. See Lovell v. Department of the Navy,
EEOC Appeal No. 01962603 (February 27, 1997).
In claim (2), Complainant stated that on March 6, 1998, a document
concerning his April 23, 1997 incident was removed from the Safety
Office and returned altered. The agency dismissed this claim for
failure to state a claim. We find that this claim is related to the
matter addressed in claim (1). Both claims address the April 23, 1997
incident and concern OWCP's denial of Complainant's claim. We find that
this claim also constitutes a collateral attack on the OWCP process and
as such, fails to state a claim under our regulations.
In claim (3) Complainant stated that management had failed to investigate
the April 23, 1997 incident when he reported it, most recently on
September 21, 1998. The record also shows that after suffering the
alleged assault on April 23, 1997, Complainant's OWCP claim concerning
this incident was denied in March 1998. Complainant contacted the
postmaster in May 1998, and after not receiving a response from the
postmaster, he wrote to the postmaster on September 21, 1998, asking
for an investigation of the alleged assault. Based on the foregoing,
we find that Complainant's initial EEO Counselor contact on October 8,
1998, was untimely. Instead of seeking EEO counseling within the
45-day time limit, he waited until October 1998, to contact a counselor.
Based on the foregoing, we find that Complainant's bare claim of �ongoing�
discrimination is not persuasive. Accordingly, claim (3) was properly
dismissed on the basis of untimely EEO counselor contact.
Accordingly, the dismissal of claims (1) and (2) on the basis of failure
to state a claim and the dismissal of claim (3) on the grounds of untimely
EEO Counselor contact, was proper and is hereby AFFIRMED.
Because we affirm the agency's decision to dismiss the three claims in
the instant complaint for the reasons stated herein, we determine that
it is unnecessary to address the agency's dismissal of these claims on
alternative grounds.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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:
August 8, 2000
DATE Carlton M. Hadden, Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
______________ _______________________________
DATE EQUAL EMPLOYMENT ASSISTANT
1 On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
Federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.