01982856_r
03-19-1999
Ernest G. Smith, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Ernest G. Smith, )
Appellant, )
)
v. ) Appeal No. 01982856
) Agency No. 1H311000298
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
Appellant filed an appeal with this Commission from a final agency
decision (FAD) concerning his complaint of unlawful employment
discrimination in violation of Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. �2000e et seq., and �501 of the Rehabilitation Act
of 1973, as amended, 29 U.S.C. �791 et seq. The final agency decision
was dated January 27, 1998. The appeal was postmarked February 27,
1998.<1> Accordingly, the appeal is accepted as timely (see, 29
C.F.R. �1614.402(a)), in accordance with EEOC Order No. 960, as amended.
The record indicates that on September 15, 1997, appellant initiated
contact with an EEO Counselor regarding his complaint. Informal efforts to
resolve his concerns were unsuccessful. On October 15, 1997, appellant
filed a formal complaint, alleging that he was the victim of unlawful
employment discrimination on the bases of race (African-American), sex
(male), physical disability (permanent joint disease of both knees),
and in retaliation for prior EEO activity when on September 12, 1997,
he received a copy of his supervisor's comments made to the Office of
Personnel Management (OPM) relative to his disability retirement request.
The supervisor stated that appellant �fail[ed] to follow instructions on
a continuous basis exhibiting a belligerent attitude towards management.
Participated and was a spokesman for a strike against the U.S. Postal
Service�. According to appellant, this statement was a �willfully
vindictive, slanderous, and a maliciously retaliatory lie.�
On January 27, 1998, the agency issued a final decision dismissing
appellant's complaint for failure to state a claim. Specifically, the
agency found that the statement was made in response to an OPM request
to determine appellant's entitlement to disability retirement benefits
and as such, the agency asserted that it was protected. The agency
maintained that the agency had an obligation to comment when there was
a dispute as to an employee's entitlement. The agency also noted that
appellant was not aggrieved because the agency action did not affect a
term or condition of appellant's employment.
EEOC Regulation 29 C.F.R. �1614.107(a) provides, in relevant part, that
an agency shall dismiss a complaint, or portion thereof, that fails to
state a claim. An agency shall accept a complaint from any aggrieved
employee or applicant for employment who believes that he or she has been
discriminated against by that agency because of race, color, religion,
sex, national origin, age or disabling condition. 29 C.F.R. �1614.103;
�1614.106(a). The Commission's federal sector case precedent has long
defined an "aggrieved employee" as one who suffers a present harm or loss
with respect to a term, condition, or privilege of employment for which
there is a remedy. Diaz v. Department of the Air Force, EEOC Request
No. 05931049 (April 21, 1994).
Upon review, we find that the present case is analogous to the situation
when an agency controverts an employee's Office of Workers' Compensation
Programs (OWCP) claim. It is well-settled that an agency has an
obligation to controvert an employee's workers' compensation claim when
there is a dispute as to an employee's entitlement. As a general rule,
controversion of a workers' compensation claim does not affect a term,
condition, or privilege of employment so as to render a person aggrieved.
See Hall v. Department of Treasury, EEOC Appeal No. 01945595 (February
23, 1995). Similarly, an agency is obligated to controvert an employee's
disability retirement application when there is a dispute as to the
employee's entitlement. Appellant alleged that the Supervisor provided
false information to OPM. We find that appellant should raise his
objections to the Supervisor's remarks with OPM. See 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).
Accordingly, the agency's dismissal of appellant's complaint for failure
to state a claim was proper and is hereby AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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 this 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 this 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 this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 filed your appeal with the
Commission. 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. 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:
March 19, 1999
____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations1The dismissal of a complaint or
a portion of a complaint may be appealed to the Commission
within thirty calendar days of the date of the complainant's
receipt of the dismissal or final decision. See 29 C.F.R. �
1614.402(a). Because the agency failed to supply a copy of the
certified mail receipt, accompanied by a date of receipt or any
other material capable of establishing that date, the Commission
presumes that the appeal was filed within thirty calendar days
of the date of appellant's receipt of the final decision.