John C. O'Dell, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionAug 8, 2000
01993906 (E.E.O.C. Aug. 8, 2000)

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.