01a45969
09-21-2005
Letha C. Jackson, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Letha C. Jackson v. United States Postal Service
01A45969
September 21, 2005
.
Letha C. Jackson,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A45969
Agency No. 1J-609-0026-02
DECISION
Complainant appeals to the Commission from the agency's August 8, 2004
decision finding no discrimination. Complainant alleges discrimination on
the bases of race (African-American), sex (female), disability (Bilateral
Carpal Tunnel Syndrome), and retaliation when on May 28, 2002, after she
returned to full duty, she was not awarded her bid position. The agency,
after an investigation, found that complainant failed to establish a
prima facie case of discrimination. The agency concluded that complainant
failed to rebut the agency's legitimate, nondiscriminatory reason.
We find the investigation inadequate to render a decision on the matter.
The record indicates that the agency, by letter dated February 8, 2002,
sent a letter informing complainant that she was awarded the bid for
the sack sorter machine pending medical evidence that she was capable
of performing the duties of the job. In the February 8, 2002 letter,
the agency requested medical documentation because complainant was on
limited duty and it was not clear whether complainant was able to perform
the functions of sack sorter. The agency argues that complainant did
not submit the medical documentation.
The record, however, contains a �Light Duty Request� signed by
complainant's doctor on May 28, 2002. The light duty request indicates
that complainant has no restrictions. There is no indication as to
whether the agency received the light duty request. Further, the
investigator never questioned the agency as to when or if the May 28,
2002 request for light duty was ever received. Further, if the May
28, 2002 request was received, there is no indication as to whether
the agency considered it adequate, and if not, why. Thus, we find the
record insufficient and remand the matter concerning the May 28, 2002
claim to the agency for a supplemental investigation.
Complainant also alleged discrimination on the same bases when she
discovered false information had been placed in her Office of Workers'
Compensation Program (OWCP) file. The agency issued a partial dismissal
on July 2, 2002, dismissing the claim. The Commission finds that
this claim amounts to a collateral attack on an OWCP decision and is
properly dismissed for failure to state a claim pursuant to 29 C.F.R. �
1614.107(a)(1). It is well-settled that an agency has an obligation
to controvert an employee's workers' compensation claim when there is a
dispute as to an employee's entitlement. As a general rule, controverting
a workers' compensation claim does not affect a term, condition, or
privilege of employment so as to render a person aggrieved. See Hall
v. Department of Treasury, EEOC Appeal No. 01945595 (February 23, 1995).
The agency's decision concerning the May 28, 2002 claim is VACATED and
we REMAND the matter to the agency for further processing in accordance
with this decision and the Order herein. The agency's decision dismissing
the OWCP matter is AFFIRMED.
ORDER
The agency shall conduct a supplemental investigation regarding if and
when the Light Duty Request dated May 28, 2002, or any other medical
documentation was received by the agency. Further, the supplemental
investigation shall address, if the information was received, whether
the agency believed it to be sufficient and the rational for that
determination. Based on the foregoing, the agency shall determine whether
complainant has established pretext and, within 30 days of the date this
decision becomes final shall issue a decision on the matter. A copy of
the decision must be sent to the Compliance Officer as referenced herein.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement
of the order. 29 C.F.R. � 1614.503(a). The complainant also has the
right to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).
Alternatively, the complainant has the right to file a civil action on
the underlying complaint in accordance with the paragraph below entitled
"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.
A civil action for enforcement or a civil action on the underlying
complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)
(1994 & Supp. IV 1999). If the complainant files a civil action, the
administrative processing of the complaint, including any petition for
enforcement, will be terminated. See 29 C.F.R. � 1614.409.
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 (T0900)
This decision affirms the agency's final decision/action in part, but it
also requires the agency to continue its administrative processing of a
portion of your complaint. 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 on both that portion
of your complaint which the Commission has affirmed and that portion
of the complaint which has been remanded for continued administrative
processing. In the alternative, you may file a civil action after
one hundred and eighty (180) calendar days of the date you filed your
complaint with the agency, or your appeal with the Commission, until
such time as the agency issues its final decision on your complaint.
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
September 21, 2005
__________________
Date