01986640
04-24-2000
Joseph R. Weber, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Joseph R. Weber, )
Appellant, )
) Appeal No. 01986640
v. ) Agency No. 4-C-190-0113-98
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
On September 3, 1998, appellant filed a timely appeal of an August 8,
1998 final agency decision dismissing his complaint for failure to
contact an EEO Counselor in a timely manner.<1>
The final agency decision framed the allegations of the April 11, 1998
complaint as whether appellant was discriminated against on the bases
of physical disability and retaliation (prior EEO activity) when on
December 3, 1994, he was not allowed to return to work. In dismissing
the complaint, the agency noted that because appellant did not contact
an EEO Counselor until February 10, 1998, for an alleged discriminatory
event that occurred over three years prior, the contact was beyond the
45-day time period and, therefore, untimely. The agency also noted
that appellant failed to provide justification sufficient to extend the
time limit.
EEOC Regulation 29 C.F.R. �1614.105(a)(1) requires that an aggrieved
person initiate contact with an EEO Counselor within 45 days of the
date of the matter alleged to be discriminatory or, in the case of a
personnel action, within 45 days of the effective date of the action.
EEOC Regulation 29 C.F.R. �1614.105(a)(2) permits the time period to be
extended under certain circumstances and 29 C.F.R. �1614.604(c) provides
that the time limits in Part 1614 are subject to waiver, estoppel and
equitable tolling. The Commission has adopted a "reasonable suspicion"
standard (as opposed to a "supportive facts" standard) to determine
when the 45-day limitation period is triggered. See Ball v. U.S. Postal
Service, EEOC Request No. 05880247 (July 6, 1988). Thus, the limitation
period is not triggered until a complainant should reasonably suspect
discrimination, but before all the facts that would support a charge of
discrimination have become apparent. When a complainant has some reason
to support the belief that prohibited discrimination has occurred,
contact with a Counselor must occur. Waiting until one has proof of
discrimination before initiating a complaint can result in untimely
contact. See Bracken v. U.S. Postal Service, EEOC Request No. 05900065
(March 29, 1990).
Initially, the Commission notes that appellant apparently sustained
a work injury to his shoulder on February 11, 1994, when he fell.<2>
Appellant indicated that he continued to work in a limited duty position
from February 12, 1994 to August 1, 1994. The claim was accepted by the
Department of Labor's (DOL) Office of Workers' Compensation Programs
(OWCP). Appellant underwent surgery in August 1994. It appears that
appellant first returned to work in May 1998.
Regarding the timeliness of his EEO contact, appellant does not dispute
that he was aware of the time period for timely contact. Appellant also
does not dispute, and the Counselor's Report reveals, that appellant
did not contact an EEO Counselor until February 10, 1998, regarding the
alleged discriminatory incident. However, appellant argues that the time
limit should be extended because he did not know that the discrimination
occurred. We are not persuaded by appellant's arguments that the time
limit should be extended or waived. On appeal and in his Information for
Precomplaint Counseling (Precomplaint), appellant alleged that he was
never informed by the agency that he was to return to work on December
3, 1994, and that the agency would not respond to his numerous letters.
In his Precomplaint, appellant also alleged that he only became aware
of the agency's letter informing him that he was to return to work on
December 3, 1994, after filing Freedom of Information Act requests with
the DOL and a civil action in U.S. District Court.<3> In an August 28,
1995 letter from appellant to the DOL, he indicates that he knew of the
limited duty job offer. In his brief, appellant refers to a September 12,
1995 letter from the OWCP. In that letter which is a part of the record,
the OWCP Claims Examiner informed appellant, among other things, that
she was enclosing the agency's letter concerning the December 3, 1994
job offer<4> and informed appellant that she was sending the agency's
letter to his physician. Appellant replied to the Claims Examiner's
letter in a September 19, 1995 letter. In addition, in his appeal brief,
appellant states that on February 18, 1997, he was visited by the agency's
home visitation team and that he informed the team that he should have
been returned to employment on December 3, 1994, and on January 6, 1996.
We find, therefore, that appellant knew at least by August 1995, about
the agency's letter. Appellant failed to act with due diligence in the
pursuit of his claim and did not take any action until February 1998.
See O'Dell v. Department of Health and Human Services, EEOC Request
No. 05901130 (December 27, 1990). Accordingly, the agency's decision
was proper.
Finally, the Commission notes that appellant also appears to be filing
what purports to be an "appeal" against the DOL regarding an August 12,
1998 decision of the OWCP regarding his compensation claim.<5> A review
of the copious record in the case at hand reflects that appellant's
has raised allegations about the OWCP's administration of his workers'
compensation benefits, an issue over which we have no jurisdiction.
Accordingly, to the extent that appellant is challenging the OWCP's
handling of his OWCP claims or its decisions regarding benefits, such
allegations amount to an impermissible collateral attack on matters within
the jurisdiction of the OWCP forum and, as such, fail to state a claim.
The Commission has recognized very narrow exceptions to the general
prohibition on collateral attacks. See Ellis v. U.S. Postal Service,
EEOC Request No. 05920011 (March 12, 1992) (discriminatory application
of the grievance process may state a claim). Thus, for example, if an
agency refused to accept grievances from all persons within a protected
class, such as race or disability, that allegation would state a claim.
In the case at hand, there is no evidence that the allegations concerning
the OWCP claims process relate to an employment policy or practice, either
by the agency or by the DOL. See Reloj v. Veterans Administration, EEOC
Request No. 05960545 (June 15, 1998); Agustin v. Department of Labor,
EEOC Request No. 05960127 (December 19, 1996); Wheeler v. Department of
Labor, EEOC Appeal No. 01963976 (July 11, 1997); Stone v. Department of
Labor, EEOC Appeal No. 01950550 (February 9, 1996).
The proper forum for appellant to raise challenges to actions which
occurred during the OWCP processing and investigation of his injury claims
was within the OWCP process. It is inappropriate to use the EEO process
to collaterally attack decisions or actions which occurred during the
processing of an OWCP claim. As noted earlier, challenging the decisions
of the OWCP and the manner in which determinations were made by the OWCP
constitute a collateral attack on OWCP's decisions and appellant is not
aggrieved for purposes of the EEOC Regulations. See Diaz v. Department
of the Air Force, EEOC Request No. 05931049 (April 21, 1994).
Based on the foregoing and consistent with our discussion, the agency's
final decision is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
April 24, 2000
DATE Ronnie Blumenthal, Director
1The Commission notes that appellant references several civil actions
filed in the United States District Court. It appears that these actions
were filed regarding his workers' compensation claim and Freedom of
Information Act and Privacy Act requests. There is no evidence in the
present record that the subject matter of this appeal was raised in the
civil actions filed by appellant and the agency has not indicated that the
civil actions filed were on the same matter. See 29 C.F.R. ��1614.107(c),
1614.410.
2In 1991, appellant apparently filed a workers' compensation claim for a
non-physical work injury. The claim was initially denied by the OWCP.
In August 1995, however, the OWCP approved the claim for adjustment
disorder/anxiety reaction.
3It is not clear from the record when the FOIA requests were satisfied.
4The agency's letter to appellant informed him, in relevant part, that he
was to report to work in a limited duty capacity on December 3, 1994, and
that if he failed to do so, his continuation of pay would be terminated
and notification would be provided to the OWCP for appropriate action.
5On the face of one of his briefs on appeal, appellant identified the
parties in the caption as DOL and himself. Therein, he alleged that the
DOL failed to reply to his July 1998 requests for EEO counseling and to
file a formal EEO complaint. There is no evidence that appellant was an
employee or an applicant for employment with the DOL. Appellant indicated
in his brief, however, that he would treat the OWCP's August 12, 1998
decision terminating his workers' compensation benefits as a dismissal
of his "complaint," although the OWCP decision clearly informed appellant
how he should proceed, if he were dissatisfied with its decision.