01972691
06-13-2000
Patrick M. Galos, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Pacific/Western Region), Agency.
Patrick M. Galos v. United States Postal Service
01972691
June 13, 2000
Patrick M. Galos, )
Complainant, )
) Appeal No. 01972691
v. ) Agency No. 4F-950-1171-94
)
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
(Pacific/Western Region), )
Agency. )
)
DECISION
Complainant timely initiated an appeal of a final agency decision (FAD)
concerning his complaint of unlawful employment discrimination on the
bases of reprisal (prior EEO activity), and physical disability (right
hand - carpal tunnel), in violation of Title VII of the Civil Rights Act
of 1964, as amended, 42 U.S.C. �2000e et seq. and the Rehabilitation Act
of 1973,<1> as amended, 29 U.S.C. �791, et seq.<2> Complainant alleges he
was discriminated against on April 29, 1994, when an Injury Compensation
Specialist provided inaccurate leave information to the U.S. Department of
Labor. The appeal is accepted in accordance with EEOC Order No. 960.001.
For the following reasons, the agency's decision is AFFIRMED.
The record reveals that during the relevant time, complainant was employed
as a Carrier at the agency's Gilroy, California Post Office. Complainant
alleged that an Injury Compensation Specialist erroneously told the
Department of Labor, Office of Workers' Compensation Programs (OWCP)
that he was off work from August 14, 1990, through December 10, 1990.
Complainant maintains that as a result, his OWCP case was denied for two
years until he could prove that he had made several back to work requests
with medical clearance. Believing he was a victim of discrimination,
complainant sought EEO counseling and, subsequently, filed a complaint on
August 11, 1994.<3> At the conclusion of the investigation, complainant
requested neither a FAD or a hearing, so the agency issued a FAD.
The FAD concluded that complainant failed to establish a prima facie
case of physical disability discrimination and reprisal because although
complainant established that he was a member of several protected
groups, he presented no evidence that similarly situated individuals
not in his protected classes were treated differently under similar
circumstances. Notwithstanding this determination, the FAD indicated
that assuming, arguendo, that complainant was able to establish a
prima facie case of discrimination, the agency articulated legitimate,
nondiscriminatory reasons for its actions, namely, that the Injury
Compensation Specialist testified that he did not provide any false
information to OWCP concerning any of the complainant's claims with the
Postal Service. Further, the FAD found that complainant failed to show
that he received adverse treatment from his employer contemporaneously
with or subsequent to his EEO activity and complainant failed to
demonstrate that the agency's reasons were pretext for discrimination. On
appeal, complainant provides no new arguments. The agency requests that
we affirm its FAD.
While the agency addressed the merits of the matter and found no
discrimination, the Commission finds that the agency should have dismissed
the matter as complainant failed to state a claim with regard to the
allegation stated herein. The Commission has held that an EEO complaint
alleging discrimination in connection with a workers' compensation claim
before the Office of Workers' Compensation Programs (OWCP) states a claim
within the Commission's jurisdiction only under limited circumstances.
See Schultz v. United States Postal Service, EEOC Request No. 05950173
(September 26, 1996); Hogan v. Department of the Army, EEOC Request
No. 05940407 (September 24, 1994). Where a complainant alleges that
the agency discriminated in the processing of a workers' compensation
claim -- for example, by failing to submit required paperwork -- then the
complaint states an EEO claim. Foster v. United States Postal Service.,
EEOC Appeal No. 01951370 (May 8, 1995), request to reconsider denied,
EEOC Request No. 05950693 (May 16, 1996). Where, however, a complainant
alleges that the agency discriminated in a manner pertaining to the
merits of the workers' compensation claim -- for example, by submitting
paperwork containing allegedly false information - then the complaint
does not state an EEO claim. Id.; Schultz, supra; Brown v. United States
Postal Service, EEOC Request No. 05980128 (July 22, 1999).
In the instant claim, complainant maintained that the agency's Injury
Compensation Specialist provided false information to OWCP with regard to
his workers' compensation claim. Therefore, he does not state a claim.
Brown, supra. However, since there was no relief or remedy granted by
the agency, the Commission declines to disturb the FAD.
Therefore, after a careful review of the record, and including arguments
and evidence not specifically addressed in this decision, we AFFIRM
the FAD.
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).
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 the 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 the 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 the 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:
June 13, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
1 The Rehabilitation Act was amended in 1992 to apply the standards
in the Americans with Disabilities Act (ADA) to complaints of
discrimination by federal employees or applicants for employment.
Since that time, the ADA regulations set out at 29 C.F.R. Part 1630
apply to complaints of disability discrimination. These regulations
can be found on EEOC's website: www.eeoc.gov.
2 On 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.
3 The agency originally dismissed this case for failure to state a claim
on October 19, 1994. Complainant appealed the decision to the Office of
Federal Operations (OFO) and OFO remanded the complaint to the agency
for investigation. See Galos v. United States Postal Service, EEOC
Appeal No. 01951002 (October 5, 1995). Subsequent to OFO's decision,
the Commission held in Brown v. United States Postal Service, EEOC
Request 05980128 (July 22, 1999), that a complainant does not state
an EEO complaint by alleging that the agency discriminated in a manner
pertaining to the merits of a workers' compensation claim.