01983891
01-10-2000
Michael J. Schulenburg, Complainant, 01983891 v. 1-I-536-0003-98 William J. Henderson, Postmaster General, United States Postal Service, Agency.
Michael J. Schulenburg, )
Complainant, )
) Appeal No.
01983891
v. ) Agency No.
1-I-536-0003-98
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
On April 24, 1998, complainant filed a timely appeal of a March 19, 1998
final agency decision dismissing his complaint for failure to contact
an EEO Counselor in a timely manner and on the alternative grounds of
failure to state a claim.
In its final decision, the agency identified the issues of the March 8,
1998 complaint as whether the complainant was discriminated against on
the bases of physical disability and in retaliation for prior protected
activity when on February 2, 1998, the complainant received a copy of
his Office of Workers' Compensation Programs (OWCP) file regarding his
work injury and it was smaller in size than his personal documentation
and his OWCP claim was not being properly processed. In dismissing the
complaint on the grounds of untimely EEO contact, the agency stated that
the complainant did not contact an EEO Counselor until January 29, 1998,
noting that appellant was absent from duty for approximately nine years
and was complaining about events that occurred over 15 years prior to
his EEO contact.<1>
Volume 64 Fed. Reg. 37,644, 37,656(1999)(to be codified and hereinafter
referred to as 29 C.F.R. � 1614.107(a)(1)) provides that the agency
shall dismiss a complaint that fails to state a claim under � 1614.103
or � 1614.106(a).<2>
The formal complaint and the Counselor's Report reflect that complainant
is alleging that the agency falsified the original accident report
(Traumatic Injury Report, Form CA-1), controversion letters and other
documents. Complainant also alleged that the OWCP file that he received
on February 2, 1998, was missing pertinent documentation regarding his
February 28, 1983 work injury.
Upon review, the Commission finds that the allegations of the
complaint constitute a collateral attack on the OWCP process and,
as such, fail to state a cognizable claim. See Reloj v. Department of
Veterans Affairs, EEOC Request No. 05960545 (June 15, 1998)(allegation
that agency's provision of false information to the OWCP resulted in
denial of benefits is a collateral attack on OWCP's decision and, thus,
fails to state a claim). See Lingad v. United States Postal Service,
EEOC Request No. 05930106 (June 24, 1993); Hogan v. Department of the
Army, EEOC Request No. 05940407 (September 29, 1994) (reviewing an
allegation that agency officials provided misleading statements to OWCP
would require the Commission to essentially determine what workers'
compensation benefits the complainant would likely have received);
Pirozzi v. Department of the Navy, EEOC Request No. 05970146 (October
23, 1998) (allegedly false statements made by agency to OWCP during
OWCP's processing of a workers' compensation claim goes to merits of
compensation claim). In addition, the Commission has consistently held
that an agency has the right to controvert any OWCP claims which it
believes to be questionable, as long as the agency is not motivated by
prohibited discriminatory reasons. See Gaskins v. U.S. Postal Service,
EEOC Appeal No. 01882945 (January 31, 1989) Hall v. Department of
the Treasury, EEOC Appeal No. 01945595 (February 23, 1995) (agency's
obligation to controvert an employee's workers' compensation claim where
there is a dispute as to the stated facts); Although the Commission has
held that a complainant may not use the EEO process to launch a collateral
attack on the workers' compensation process, the Commission has recognized
very narrow exceptions to the general prohibition on collateral attacks.
See Story v. U.S. Postal Service, EEOC Request No. 05960314 (October
18, 1996); Lau v. National Credit Union Administration, EEOC Request
No. 05950037 (March 18, 1996). However, the allegations in the case at
hand do not fall within these narrow exceptions. The present complaint
concerns the general administration of workers' compensation benefits
and does not relate to an employment policy or practice. Accordingly,
consistent with the foregoing discussion, the agency's dismissal on the
grounds of failure to state a claim is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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). 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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)
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:
January 10, 2000
DATE
Carlton
M.
Hadden,
Acting
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 Assistant1The record reveals that the
complainant began working for the agency as a mail handler
in October 1982, and sustained a work injury to his knee
in 1983. The complainant underwent surgeries to his knee.
In May 1986, the complainant was reassigned to his position
with permanent restrictions. It appears that as a result of
a last chance settlement agreement, complainant was provided
a part-time regular mail handler position in January 1988,
and worked in this capacity until June 1988, when he stopped
working due to stress. The complainant returned to work
in February 1989, as a letter carrier and worked in that
capacity until he apparently stopped working in December 1989.
The OWCP accepted complainant's claim for his psychological
conditions and post-traumatic stress. It appears that
complainant was removed from the agency in November 1990.
Complainant challenged his removal. There is no indication in
the record that complainant returned to work for the agency.
2On 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.