Ronald Kearney, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, (Pacific/Western Region), Agency.

Equal Employment Opportunity CommissionAug 1, 2000
01a02855 (E.E.O.C. Aug. 1, 2000)

01a02855

08-01-2000

Ronald Kearney, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Pacific/Western Region), Agency.


Ronald Kearney v. United States Postal Service

01A02855

August 1, 2000

Ronald Kearney, )

Complainant, )

)

v. ) Appeal No. 01A02855

William J. Henderson, ) Agency No. 1F921000800

Postmaster General, )

United States Postal Service, )

(Pacific/Western Region), )

Agency. )

____________________________________)

DECISION

Complainant filed a timely appeal with this Commission from the agency's

final decision (FAD) dated January 26, 2000, dismissing his complaint

of unlawful employment discrimination in violation of Section 501 of

the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29

U.S.C. � 791 et seq.<1> In his complaint, complainant alleges that he

was subjected to discrimination on the basis of disability (back) when:

(1) on July 31, 1999, his supervisor made a false statement on a

Department of Labor Form CA-1, Federal Employee's Notice of Traumatic

Injury and Claim for Continuation of Pay/ Compensation;

(2) on October 23, 1999, he was ordered to have allegedly falsified

Medical Leave Act (FMLA) medical paperwork filled out by his doctor;

on October 28, 1999, he was ordered to report to the Employee Assistance

Program (EAP);

on an unspecified date he was ordered to repay continuation of pay he

received while a decision on his injury compensation claim was pending.

On January 26, 2000, the agency issued a FAD dismissing the complainant's

complaint for various reasons. The agency dismissed claims (1) and (4)

on the grounds that these specific incidences were a collateral attack

on the U.S. Department of Labor, Office of Worker's Compensation Programs

(OWCP) process and therefor failed to state a claim.<2> The agency also

dismissed claims (2) and (3) for failure to state a claim. However,

the agency accepted a fifth issue for investigation which the agency

failed to address in its FAD. Consequently, we remand the complaint to

the agency for processing.

In remanding the complaint, we note that, in accordance with the

provisions of 29 C.F.R. � 1614.107(b), �[w]here the agency believes that

some but not all of the claims in a compliant should be dismissed for the

reasons contained in [29 C.F.R � 1614.107(a)], the agency shall notify

the complainant in writing of its determination, the rationale for that

determination and that those claims will not be investigated, and shall

place a copy of the notice in the investigative file.� Complainant

is advises that the agency's determination is reviewable by an EEOC

administrative judge if a hearing is requested, but is not appealable

to the Commission until final action is taken on the remainder of the

complaint. Id. See also EEOC Management Directive (MD) 110, as revised,

November 9, 1999.

CONCLUSION

Accordingly, we VACATE the agency's decision and REMAND this mater in

accordance with the following order and the applicable EEOC regulations.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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); 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 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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)

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, Acting Director

Office of Federal Operations

August 1, 2000

Date

1On 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. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.

2 We take the opportunity to note with respect to (1) and (4) that

the OWCP has its own adjudication process over which the Commission

has no jurisdiction. An appeal concerning the OWCP is not proper with

the Commission's administrative process. The Commission has held that

an employee cannot use the EEO complaint process to lodge a collateral

attack on another proceeding. See Wills v. Department of Defense , EEOC

Request No. 05970596 (July 30, 1998). The proper forum for complainant

to have raised his challenges to actions which occurred during the

arbitration proceeding was at that proceeding itself.