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.