01A20569_r
04-03-2002
John G. Berryman, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
John G. Berryman v. United States Postal Service
01A20569
April 3, 2002
.
John G. Berryman,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A20569
Agency No. 4G-770-0731-01
DECISION
Complainant filed an appeal with this Commission from an agency decision
pertaining to his complaint of unlawful employment discrimination in
violation of Title VII of the Civil Rights Act of 1964 (Title VII), as
amended, 42 U.S.C. � 2000e et seq. The Commission accepts the appeal
in accordance with 29 C.F.R. � 1614.405.
On July 16, 2001, complainant contacted the EEO office regarding
claims of discrimination based on retaliation for prior EEO activity.
Informal efforts to resolve complainant's concerns were unsuccessful.
Subsequently, on September 7, 2001, complainant filed a formal complaint.
The agency, in its decision, framed the claims as follows:
(1) On January 25, 2001, complainant sustained an on-the-job injury
and was denied medical treatment for thirty minutes;
(2) Postmaster made a derogatory comment concerning the on-the-job
injury;
(3) Complainant was not compensated for January 26, 2001, the day after
the injury;
(4) Complainant was not allowed to use sick or annual leave once the
COP expired;
(5) Complainant's request for advanced pay was denied;
(6) On complainant's birthday, the postal inspection team paid
complainant a visit at his home; and
(7) Complainant has not received a check from the OWCP (Office of
Workers' Compensation Programs).
On September 24, 2001, the agency issued a decision dismissing the
complaint for untimely counselor contact and failure to state a claim.
Specifically, the agency determined that complainant's July 16, 2001
contact was 171 days after the alleged incident. With respect to the OWCP
issue, the agency noted that an attack on the merits of an OWCP claim,
the agency's actions in representing its interests in the OWCP forum,
or even in the submission of allegedly false information, does not state
a claim. Lastly, the agency reasoned that one must show a �injury in
fact� to be aggrieved.
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the Equal Employment
Opportunity Counselor within forty-five (45) days of the date of the
matter alleged to be discriminatory or, in the case of a personnel
action, within forty-five (45) days of the effective date of the action.
The Commission has adopted a "reasonable suspicion" standard (as opposed
to a "supportive facts" standard) to determine when the forty-five (45)
day limitation period is triggered. See Howard v. Department of the Navy,
EEOC Request No. 05970852 (February 11, 1999). Thus, the time limitation
is not triggered until a complainant reasonably suspects discrimination,
but before all the facts that support a charge of discrimination have
become apparent.
EEOC Regulations provide that the agency or the Commission shall extend
the time limits when the individual shows that he was not notified of the
time limits and was not otherwise aware of them, that he did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence he was prevented
by circumstances beyond his control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission.
In the instant case, complainant contends that he suffered discrimination
in the events surrounding his on-the-job injury on January 25, 2001.
As noted above, complainant contends that his medical attention was
delayed (claim 1); the Postmaster commented that there was �something
fishy� about the incident (claim 2); and he was not paid for the day after
the accident (claim 3). Although these events occurred in late January
2001, complainant did not contact the EEO office until July 16, 2001.
When asked about the untimely contact, complainant explained to the EEO
Counselor that he assumed the matters could be included with a prior case
that was pending a hearing before an EEOC Administrative Judge (AJ).
The Commission, however, does not find that this is sufficient reason
to toll or extend the time limit for contacting the EEO Counselor.
Complainant also contends that he was not paid annual or sick leave
after his COP expired (claim 4) and that his request for a pay advance
was denied (claim 5). We find that complainant should have contacted
the EEO office regarding these matters more than forty-five days prior
to July 16, 2001. Consequently, the agency's dismissal of the claims
on the grounds of untimely EEO Counselor contact was proper.
In claims 6 and 7, respectively, complainant states that Postal Inspectors
were sent to his house on his birthday and that the Postmaster was
overheard saying that �if she had to use her own personal money she
would prove that he was faking his injury.� Complainant has failed to
establish that these incidents resulted in a personal harm or loss to a
term, condition or privilege of his employment. Further, the Commission
has repeatedly found that remarks or comments unaccompanied by a concrete
agency action are not a direct and personal deprivation sufficient to
render an individual aggrieved for the purposes of Title VII. See Backo
v. United States Postal Service, EEOC Request No. 05960227 (June 10,
1996); Henry v. United States Postal Service, EEOC Request No. 05940695
(February 9, 1995). Therefore, we agree with the agency that the home
visit and remark fail to state a claim.
Finally, complainant asserts that he has not received a check from OWCP.
On appeal he argues that his Postmaster �is the reason the OWCP office
has been taking so long with his claim payment and processing.� The
Commission finds that claim 7 constitutes a collateral attack on
the OWCP process and, as such, fails to state a cognizable claim.
See Reloj v. Department of Veterans Affairs, EEOC Request No. 05960545
(June 15, 1998). Moreover, the Commission has held that it is within
the OWCP's jurisdiction to determine whether a compensation claim with
OWCP has merit, and OWCP claims are not appealable to the EEOC. See Hogan
v. Department of the Army, EEOC Request No. 05940407 (September 29, 1994).
Therefore, we find that the agency properly dismissed claim 7.
Accordingly, the agency's decision to dismiss the complaint was proper
and is hereby 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
April 3, 2002
__________________
Date