0120071961
01-16-2009
Samuel D. Gagliano, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Samuel D. Gagliano,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120071961
Agency No. 4E-800-0012-07
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision dated February 8, 2007, dismissing his formal complaint
of unlawful employment discrimination in violation of Title VII of the
Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e
et seq., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation
Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination
in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
On January 24, 2007, complainant filed the instant formal complaint.
Therein, complainant claimed that he was subjected to discrimination
on the bases of sex, disability, age, and in reprisal for prior EEO
activity.
On February 8, 2007, the agency issued a final decision. Therein,
the agency determined that complainant claimed that he was subjected to
harassment and a hostile work environment on an ongoing basis regarding
the following incidents:
1. Not supported when his subordinates tried to undermine his authority;
2. Not given assistance with additional work responsibilities;
3. The spouse of an employee he had reported for misconduct was assigned
to supervise him;
4. His subordinates and co-workers were informed he would not be returning
to the office before he was told;
5. Given a letter dated 8/25/06 regarding expectations and instructions;
6. His Office of Workers' Compensation Programs (OWCP) claim was
controverted;
7. His management position was threatened;
8. From August 25, 2006 to October 21, 2006, he was charged annual leave
instead of sick leave; and
9. on October 21, 2006, he was involuntary reassigned to the Glendale
office.
The agency dismissed the formal complaint in its entirety, pursuant to
29 C.F.R. � 1614.107(a)(2), on the grounds that it was untimely filed.
Specifically, the agency determined that complainant received the Notice
of Right to File a Discrimination Complaint (hereinafter "Notice") on
January 6, 2007, as confirmed by a Postal Service Track and Confirm
computerized tracking system, but that complainant waited more than
fifteen days to file the formal complaint.
The agency also dismissed complainant's claim that his OWCP claim was
controverted (claim 6) on the alternative grounds of failure to state
a claim, pursuant to 29 C.F.R. � 1614.107(a)(1).
Failure to state a claim : Claim 6
The Commission determines that the agency properly dismissed complainant's
claim that his OWCP claim was controverted for failure to state a
claim. Complainant's claim constitutes a collateral attack on the OWCP
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); Kleinman v. United States Postal Service, EEOC Request No. 05940585
(September 22, 1994); Lingad v. United States Postal Service, EEOC Request
No. 05930106 (June 25, 1993). The proper forum for complainant to have
raised his challenges to actions which occurred during the OWCP process
was within that forum itself. It is inappropriate to now attempt to
use the EEO process to collaterally attack actions which occurred during
the OWCP process.
Untimely filing: the remaining claims
The regulation set forth at 29 C.F.R. � 1614.107(a)(2) states, in
pertinent part, that an agency shall dismiss a complaint which fails to
comply with the applicable time limits contained in 29 C.F.R. � 1614.106,
which, in turn, requires the filing of a formal complaint within fifteen
(15) days of receiving the notice of the right to do so.
Based on a thorough review of the record and consideration of the
arguments on appeal, the Commission concludes that the agency dismissal,
due to the untimely filing of the formal complaint with the exception
of complainant's OWCP claim, was improper. Specifically, the record
contains insufficient evidence reflecting complainant's receipt of
the Notice on January 6, 2007, as determined by the agency. The record
contains a United States Postal Service "Track & Confirm" print-out, which
indicates a delivery on January 6, 2007 in "Denver, CO 80204" without any
further details of the address. There is no evidence, other than this
generalized reference to a city and zip code, indicating that complainant
actually received the Notice. Where, as here, there is an issue of
timeliness, "[a]n agency always bears the burden of obtaining sufficient
information to support a reasoned determination as to timeliness."
Guy v. Department of Energy, EEOC Request No. 05930703 (January 4, 1994)
(quoting Williams v. Department of Defense, EEOC Request No. 05920506
(August 25, 1992)). In addition, in Ericson v. Department of the Army,
EEOC Request No. 05920623 (January 14, 1993), the Commission stated
that "the agency has the burden of providing evidence and/or proof to
support its final decisions." See also Gens v. Department of Defense,
EEOC Request No. 05910837 (January 31, 1992). As it is undisputed that
complainant filed his formal complaint on January 24, 2007, and there
is inadequate evidence of complainant's receipt of the Notice, we find
that complainant's formal complaint was timely filed.
Accordingly, the agency's dismissal of complainant's OWCP claim for
failure to state a claim (claim 6) is AFFIRMED.1 The agency's dismissal
of complainant's remaining claims on the grounds that the formal complaint
was untimely filed is REVERSED. The remaining claims (claims 1 - 5, and
7 - 9) are REMANDED to the agency for further processing in accordance
with this decision and the ORDER below.
ORDER (E0408)
The agency is ordered to process the remanded claims in accordance with 29
C.F.R. � 1614.108 et seq. The agency shall acknowledge to the complainant
that it has received the remanded claims within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue
to complainant a copy of the investigative file and also shall notify
complainant of the appropriate rights within one hundred fifty (150)
calendar days of the date this decision becomes final, unless the matter
is otherwise resolved prior to that time. If the complainant requests a
final decision without a hearing, the agency shall issue a final decision
within sixty (60) days of receipt of complainant's request.
A copy of the agency's letter of acknowledgment to complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0408)
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 77960,
Washington, D.C. 20013. 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 (M1208)
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 77960,
Washington, DC 20013. 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 (T0408)
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 (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
January 16, 2009
__________________
Date
1 Because we affirm the dismissal of claim 6 for the reason stated herein,
we find it unnecessary to address alternative dismissal grounds (i.e.,
untimely filing of the formal complaint).
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0120071961
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
6
0120071961