01992045
02-06-2001
Leslie G. Peters, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Leslie G. Peters v. United States Postal Service
01992045
February 6, 2001
.
Leslie G. Peters,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01992045
Agency No. 4-F-956-0129-98
DECISION
Complainant filed a formal complaint of discrimination on the basis of
disability (anxiety disorder/Post Traumatic Stress Disorder) alleging
harm when:
On February 6, 1998, a co-worker stated that she had thoughts of killing
complainant;
On February 20, 1998, complainant's return to work was delayed because
the occupational nurse was not available; and
On April 17, 1998, complainant became aware that the Yuba City Postmaster
(PM) had been coached.
On September 11, 1998, the agency accepted the claims for investigation.
Subsequently, complainant sought to amend her complaint by adding the
following claims:
On February 7, 1998, complainant was not cleared for duty, his request to
see the postal doctor received no action, and he had a vehicle accident;
On February 9, 1998, complainant left work due to work-related stress;
From February 9 - 20, 1998, management failed to request required
medical information, resulting in a one-week delay in complainant's
return to duty;
Complainant was placed on administrative leave effective February 21,
1998, was told his time away would be charged as sick-leave even though
he was not sick and was medically cleared to return to duty, and was
told that the smoking area would not be relocated;
On March 4, 1998, a supervisor commented that he might hire a female
employee escorted onto the workroom floor the previous day, yelled at
complainant during a conversation regarding second-hand smoke, and pushed
another employee out of his way as he was coming after complainant;
On March 5, 1998, complainant received a copy of the supervisor's
statement concerning Form CA-1 submitted on March 2, 1998, received a
letter from PM stating that complainant may leave the dock area when
smokers are present, and visited his doctor's office where he was
released from work due to stress;
On March 6, 1998, the supervisor counseled a coworker regarding a comment
the coworker overheard that the smokers �want to kick complainant's
ass;�
On March 9, 1998, the District Manager (DM) did not respond to
complainant's request for an investigation of the Postmaster's actions,
or that a smoking policy equal to the District policy be provided to
Yuba City;
On March 11, 1998, PM threatened to suspend complainant if he did not
drop his request for the DM to investigate PM;
On March 13, 1998, an e-mail was received from the District Safety
Office regarding the District smoking policy;
On March 23, 1998, PM received an e-mail from an Injury Compensation
Specialist advising him that the supervisor's statement (regarding
complainant's Office of Workers' Compensation Program (OWCP) claim)
should be changed, and they agreed not to inform complainant of the
changes;
On March 24, 1998, PM wrote complainant a letter at the direction of DM,
stating that he was sure they could resolve the issues of concern;
On March 27, 1998, PM did not allow the supervisor to respond to a
request for information from the Department of Labor (DOL) concerning
complainant's OWCP claim;
On April 20, 1998, complainant requested that DM conduct an investigation
concerning the actions of the PM, the supervisor, and the Injury
Compensation Specialist regarding complainant's OWCP claim, and was
told by PM that she must commute to the District Office to review her
file and that she might have to pay for documents;
On April 22, 1998, complainant was removed from duty by his doctor due
to job stress;
On April 29, 1998, complainant filed a grievance concerning PM's refusal
to provide complainant with documents from his file;
On May 7, 1998, DM provided complainant with a copy of an e-mail
explaining why the supervisor changed his OWCP statement;
On May 27, 1998, DOL informed complainant that the incidents reported
in his OWCP claim were not established as factual; and
On August 12, 1998, complainant's grievance was decided at Step-3.
On January 7, 1999, the agency dismissed the entire complaint, including
the previously accepted claims. Specifically, the agency dismissed claims
(1) - (20) for untimely counselor contact, finding that complainant did
not seek EEO counseling until July 6, 1998. Claims (19), (21), and (22)
were dismissed for failure to state a claim.
The agency may dismiss claims that fail to state a claim. See 29
C.F.R. � 1614.107(a)(1). Collateral attacks against other administrative
processes fail to state a claim. See Wills v. Department of Defense ,
EEOC Request No. 05970596 (July 30, 1998). The Commission finds that
claims (14), (16), (17), (19), (20), (21), and (22) all concern OWCP
claims or grievances. These collateral attacks fail to state a claim.
Generally, complainant must raise claims of discrimination with
an EEO Counselor within forty-five (45) days of their occurrence.
See 29 C.F.R. � 1614.105(a)(2). The agency may dismiss complaints that
fail to comply with this time limitation. 29 C.F.R. � 1614.107(a)(2).
On appeal, complainant argues that he was incapacitated, and thus unable
to contact an EEO Counselor at an earlier date. The limitation period
is subject to equitable tolling in certain situations. In claims of
medical incapacity, complainant must show that he is so incapacitated
by his condition that he is unable to meet the regulatory time limits.
See Davis v. United States Postal Service, EEOC Request No. 05980475
(August 6, 1998). The Commission finds that complainant has failed to
show that he was so incapacitated that he was unable to contact an
EEO Counselor. Accordingly, the agency's dismissal of claims (1) -
(20) for untimely counselor contact was proper.
CONCLUSION
Accordingly, the agency's dismissal is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
February 6, 2001
__________________
Date