01a00790
02-08-2000
William D. Martin, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service (S.E./S.W. Areas) Agency.
William D. Martin, )
Complainant, )
)
v. ) Appeal No. 01A00790
) Agency No. 1H-302-0022-99
William J. Henderson, )
Postmaster General, )
United States Postal Service )
(S.E./S.W. Areas) )
Agency. )
____________________________________)
DECISION
On October 20, 1999, complainant filed a timely appeal with this
Commission from a final agency decision (FAD) pertaining to his complaint
of unlawful employment discrimination in violation of the Title VII of
the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;
the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq.; and the Rehabilitation Act of 1973, as amended,
29 U.S.C. � 791, et seq.<1> In his complaint, complainant alleged that
he was subjected to discrimination on the basis of race (Caucasian), age
(49) and physical disability(left foot impairment), when, since his job
related injury the Office of Worker's Compensation Programs and agency
management have refused to allow him to work more than four hours per
day. The appeal is accepted in accordance with EEOC Order No. 960.001.
For the following reasons, the Commission AFFIRMS the agency's final
decision.<2>
Complainant alleged that since May 1995, he has been denied the
opportunity to work over four hours per day. The EEO Counselor's report
also indicates that an interview could not be held with complainant
within the thirty day time limit, and complainant refused to extend
the time limits. Also contained in the record is an agency request
for information regarding specific dates on which complainant allegedly
discriminated against. There is no evidence of a response to the agency's
request for information.
On September 22, 1999, the agency dismissed the complaint pursuant to EEOC
Regulation 29 C.F.R. � 1614.105(a)(1), for failure to make timely contact
with an EEO counselor. Specifically, the agency found that complainant
was provided a Modified job assignment with a four hour work day effective
June 13, 1997. As such, complainant failed to make timely EEO Counselor
contact in that learned of his four hour per day restriction on June 13,
1997, but failed to contact an EEO Counselor until September 25, 1998.
Complainant failed to provide any explanation for his delay.
The agency also dismissed his complaint pursuant to 29 C.F.R. �
1614.107(a) for failure to state a claim. Specifically, the agency
determined that complainant failed to demonstrate that he suffered direct
and personal deprivation as a result of any agency action. The agency
also found complainant was using the EEO process to lodge a collateral
attack on the OWCP's processing.
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the Equal Employment
Opportunity Counselor within forty-five (45) days of the date of the
matter alleged to be discriminatory or, in the case of a personnel action,
within forty-five (45) days of the effective date of the action. The
Commission has adopted a "reasonable suspicion" standard (as opposed to a
"supportive facts" standard) to determine when the forty-five (45) day
limitation period is triggered. See Ball v. United States Postal Service,
EEOC Request No. 05880247 (July 6, 1988). Thus, the time limitation is
not triggered until a complainant reasonably suspects discrimination,
but before all the facts that support a charge of discrimination have
become apparent.
EEOC Regulations provide that the agency or the Commission shall extend
the time limits when the individual shows that he was not notified of the
time limits and was not otherwise aware of them, that he did not know
and reasonably should not have known that the discriminatory matter or
personnel action occurred, that despite due diligence he was prevented
by circumstances beyond his control from contacting the Counselor within
the time limits, or for other reasons considered sufficient by the agency
or the Commission. 29 C.F.R. � 1614.105(a)(2).
In the instant case, a review of the EEO Counselor's Inquiry report
provided by the agency reveals that complainant initiated contact with an
EEO Counselor on September 25, 1998, significantly more than 45 days after
May 1995, the date cited by complainant. On appeal, complainant, through
his representative complains about the processing of his complaints.
After a review of the record, the Commission finds that complainant
failed to provide any persuasive evidence or argument why we should
extend the time requirements in this case.
We also agree with the agency's findings that the complaint constitutes
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).
Accordingly, the Commission AFFIRMS the agency's final decision.
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:
February 8, 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 of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_________________________
Equal Employment Assistant
__________________________
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, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.
2The Commission takes notice that complainant filed at least thirteen
complaints on the same day. The Commission cautions complainant that
it retains the right to protect its processes and procedures from
misuse and abuse. However, at present, the Commission will not find
that complainant is abusing its processes. See Kessinger v. USPS, EEOC
Request No. 05970408 (May 30, 1997); Kleinman v. USPS, EEOC Request
No. 05940579 et al. (September 22, 1994); Hooks v. USPS, EEOC Appeal
No. 01953852 et al. (November 28, 1995).