0120093586
02-17-2010
Genaro Franco, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Pacific Area), Agency.
Genaro Franco,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Pacific Area),
Agency.
Appeal No. 0120093586
Agency No. 4F926014509
DECISION
Complainant filed a timely appeal with this Commission from the
agency's decision dated August 13, 2009, 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. In his complaint, as amended, complainant alleged, in
pertinent part, that he was subjected to discrimination based on his
disabilities and in reprisal for prior EEO activity when:
1. comments were written on his mid-year performance evaluation that he
did not follow orders;
2. clock rings he entered for three employees were deleted by another
supervisor;
3. on an unspecified date the agency controverted the Notice of
Occupational Disease and Claim for Compensation, CA-2 form he filed
with the U.S. Department of Labor (DOL), Office of Workers' Compensation
Programs (OWCP); and
4. from June 14, 2008 until March 15, 2009, he was in a non-pay status.
Complainant is a Supervisor, Customer Services. The agency dismissed
claims 1, 2 and 3 for failure to state a claim. In connection with claims
1 and 2, the agency reasoned that complainant did not claim any personal
loss related to a term, condition or privilege of employment. The agency
found claim 3 was a collateral attack on another forum's proceeding,
i.e., the DOL forum. The agency dismissed claim 4 for failure to timely
initiate EEO counseling. It reasoned that complainant initiated EEO
contact on June 21, 2009, more than 45 calendar days beyond the time
limit to do so.
On appeal, complainant argues that claim 3 is not a collateral attack
against the DOL because his CA-2 was controverted by the agency, not DOL.
Complainant also argues that while management's controversion was in
August 2008, he did not learn of it until June 18, 2009, and hence
claim 4 is timely. The agency argues that its final decision should
be affirmed.
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in
relevant part, that an agency shall dismiss a complaint 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,
.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).
The Commission has a policy of considering reprisal claims with a
broad view of coverage. See Carroll v. Department of the Army, EEOC
Request No. 05970939 (April 4, 2000). Under Commission policy, claimed
retaliatory actions which can be challenged are not restricted to those
which affect a term or condition of employment. Rather, a complainant
is protected from any discrimination that is reasonably likely to deter
protected activity. See EEOC Compliance Manual Section 8, "Retaliation,"
No. 915.003 (May 20, 1998), at 8-15; see also Carroll, supra.
Even if claim 1 does not does not involve a present harm or loss with
respect to a term, condition, or privilege of employment for which there
is a remedy, it still states a claim of reprisal because comments in
a mid-year performance evaluation that an employee is not following
orders would reasonably likely chill or deter protected EEO activity.
As claim 1 is being remanded for investigation, the agency must also
investigate the disability basis in connection with claim 1.
We agree that complainant was not harmed by the matter in claim 2,
i.e., another supervisor deleting clock rings complainant entered for
three employees. Also, this would not reasonably deter EEO activity.
Accordingly, the agency's dismissal of claim 2 is affirmed.
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). Complainant argues that his
complaint is not a collateral attack against DOL because his OWCP claim
was controverted by the agency, not DOL. Complainant's argument misses
the point. The agency controverted complainant's OWCP claim in the
DOL process. Complainant's EEO complaint about the controversion is a
collateral attack on the DOL proceeding. The forum to rebut the agency's
controversion is directly in the DOL process itself, not the EEO forum.
See Gagliano v. United States Postal Service, EEOC Appeal No. 0120071961
(January 16, 2009). The agency's dismissal of claim 3 is affirmed.
An aggrieved person must seek EEO counseling within 45 days of the date
of the alleged discriminatory action, or in the case of a personnel
action, within 45 days of the effective date of the action. 29 C.F.R. �
1614.105(a)(1) & .107(a)(2). The agency or the Commission shall extend
the 45 calendar day time limit when the individual shows he did not
know and reasonably should not have known that the discriminatory manner
or personnel action occurred. 29 C.F.R. � 1614.105(a)(2). In arguing
that he did not learn until June 18, 2009 that the agency controverted
his CA-2, complainant appears to be contending that he was not aware
of the alleged discrimination in claim 4 until then. This argument is
not persuasive. Complainant contended elsewhere that on August 14, 2008,
he requested light duty so he could work, and that he was not reasonably
accommodated when the agency the denied the request.
In connection with claim 4, complainant also argues that he was in the
middle of two EEO complaints, and he thought a settlement agreement
would pay back pay and reimburse leave. This does not justify waiting
to contact an EEO counselor.1 The agency's dismissal of claim 4 is
affirmed.
The agency's decision to dismiss claims 2, 3 and 4 is affirmed.
The agency's decision to dismiss claim 1 is reversed.
ORDER (E0408)
The agency is ordered to process claim 1 in accordance with 29 C.F.R. �
1614.108. 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 (K1208)
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,
DC 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
February 17, 2010
__________________
Date
1 Complainant and the agency signed a settlement agreement in February
2009 releasing the agency from all claims and causes of action, both known
and unknown, arising prior to the execution of the settlement agreement
(this did not pertain to OWCP or claims for unemployment benefits).
Under the settlement agreement, complainant could return to work on
March 15, 2009, conditioned on certain requirements, mostly medical.
The agency also agreed to pay complainant $42,000, of which $6,000 was
attorney fees.
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0120093586
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120093586