05980149
02-02-2001
L. C. Wade, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
L. C. Wade v. United States Postal Service
05980149
February 2, 2001
.
L. C. Wade,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Request No. 05980149
Appeal No. 01972151
Agency No. 4-G-700-1234-96
DECISION ON REQUEST FOR RECONSIDERATION
On November 24, 1997, L. C. Wade (complainant) timely initiated a
request to the Equal Employment Opportunity Commission (the Commission)
to reconsider the decision in L. C. Wade v. United States Postal Service,
EEOC Appeal No. 01972151 (November 17, 1997).<1> EEOC regulations provide
that the Commissioners may, in their discretion, reconsider any previous
Commission decision. 29 C.F.R. � 1614.405(b). The party requesting
reconsideration must submit written argument or evidence which tends
to establish one or more of the following two criteria: the appellate
decision involved a clearly erroneous interpretation of material fact
or law; or the decision will have a substantial impact on the policies,
practices or operations of the agency. Id. For the reasons set forth
herein, complainant's request is granted.
In the previous decision, the Commission dismissed complainant's appeal
as untimely filed, finding that complainant's attorney received the
agency's final decision on December 16, 1996, and that complainant filed
his appeal on January 28, 1997.
In his request for reconsideration, complainant claims that the Commission
erred in its previous decision.
The record reveals that complainant via his attorney received the agency's
decision on December 16, 1996, and filed his appeal on January 2, 1997,
within the applicable limitation period for filing a timely appeal.
It appears that the previous decision erroneously used the date of
the correspondence, wherein complainant identified the agency and
agency number relevant to the case being appealed, as the date of the
original appeal. The Commission finds that complainant timely filed
his appeal and that the prior decision erred in dismissing the appeal.
The Commission grants complainant's request for reconsideration and
shall now address the findings in the agency decision.
Complainant filed a formal complaint of discrimination on October 1,
1996, alleging that he had been discriminated against on the bases of race
(African-American) and disability (PTSD) when:
On August 12, 1996, complainant was terminated because of management's
failure to accommodate his medical restrictions related to PTSD and
a job-related injury;
Management refused to approve and file the paperwork necessary for
benefits resulting from his disabilities;
Management misrepresented rules and regulations regarding sick leave
and light duty;
Management placed a junior White employee in charge of complainant; and
Complainant was forced to work his vacation time.
In its December 12, 1996 decision, the agency dismissed claims (1),
(4), and (5) pursuant to the regulation set forth at 29 C.F.R. �
1614.107(a)(2), for raising matters in the formal complaint which
were not addressed during pre-complaint counseling. Specifically, the
agency claimed that the only issues discussed during counseling were
complainant's on-the-job injury that occurred on September 2, 1995;
complainant's reporting of the injury to his supervisor (S1) and his
subsequent request for time off on September 5, 1995; complainant's
reporting to work on September 13, 1995, his request for a CA-1 form
and S1's denial of complainant's request for light duty and delay in
giving him a CA-1 form; S1's statement to complainant on September 28,
1995, that he would not receive worker's compensation; Office of Workers'
Compensation Program's (OWCP) denial of complainant's claim on November
22, 1995; the approval by complainant's doctor on January 15, 1996,
for his return to light duty; and the return of complainant on January
16, 1996, with a medical limitation to perform only light duty work.
The agency advised complaint to seek counseling with regard to claims (1),
(4), and (5) which it stated were not raised with an EEO Counselor.
The agency dismissed claims (2) and (3) pursuant to the regulation set
forth at 29 C.F.R. � 1614.107(a)(2), for untimely EEO Counselor contact.
The agency noted that the alleged discriminatory events occurred between
September 2, 1995 through January 16, 1996; however, complainant did
not contact an EEO Counselor until July 25, 1996, beyond the applicable
limitations period for timely counselor contact. Finally, the agency
dismissed claim (2) pursuant to the regulation set forth at 29 C.F.R. �
1614.107(a)(1), for failure to state a claim. Specifically, the agency
stated that it has an obligation to controvert an employee's workers'
compensation claim where there is a dispute as to the employee's
entitlement. In addition, the agency stated that claim (2), involves
actions that are under the jurisdiction of the Department of Labor,
OWCP and not that of the agency and therefore argued that complainant
did not allege a harm as a result of an agency action.
The record contains a copy of PS 2564-A, Information for Precomplaint
Counseling which indicates that complainant initiated contact with
an EEO Counselor on July 25, 1996. On the PS 2564-A, complainant
identified his September 2, 1995 on-the-job injury and stated that
he reported the incident to his supervisor and requested a CA-1 form.
Complainant alleged that his supervisor delayed in giving him the CA-1
form, misrepresented the process, and told him that he would not receive
workers' compensation. Complainant stated that when he returned to work
on January 16, 1996, his supervisor told him that the agency could not
accommodate his light duty restrictions. In addition, complainant claimed
that he was discriminated against when a White male employee was left in
charge during his supervisor's vacation. Finally, complainant stated that
he was treated differently when he was asked to come back from vacation
early while other employees were not required to do this.
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 raises a
matter that has not been brought to the attention of an EEO Counselor,
and is not like or related to a matter on which the complainant has
received counseling. A later claim or complaint is "like or related"
to the original complaint if the later claim or complaint adds to
or clarifies the original complaint and could have reasonably been
expected to grow out of the original complaint during the investigation.
See Scher v. United States Postal Service, EEOC Request No. 05940702
(May 30, 1995); Calhoun v. United States Postal Service, EEOC Request
No. 05891068 (March 8, 1990).
With regard to claims (4) and (5), we find that complainant raised
these issues with the EEO Counselor as identified on the pre-complaint
counseling form. With regard to claim (1), we find that this claim is
like or related to the issues raised during counseling. In his formal
complaint, complainant states that he was terminated on August 12,
1996, as a result of management's failure to accommodate his medical
restrictions related to PTSD and a job-related injury. We find that this
claim is like or related to complainant's claim regarding his job-related
injury, management's alleged misrepresentations regarding sick leave and
light duty, and his supervisor's alleged delay in providing complainant
the proper paperwork to pursue his workers' compensation claim based on
the job-related injury. Therefore, we find that the agency improperly
dismissed claims (1), (4), and (5).
With regard to claim (2), we find that the agency properly dismissed
this claim for failure to state a claim. In claim (2), complainant
alleged that the agency refused to approve and file the paperwork
necessary for complainant to receive workers' compensation benefits.
The record shows that complainant's claim for workers' compensation
benefits was processed by the Department of Labor and was ultimately
denied based upon insufficient evidence that complainant sustained
an injury. Complainant appears to be arguing that the agency delayed
processing his OWCP claim. Complainant has failed to show how he was
harmed by the alleged delay. Furthermore, 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 processing of his OWCP claim was
with the Department of Labor's appellate process. It is inappropriate
to now attempt to use the EEO process to collaterally attack actions
which occurred during the processing of his workers' compensation claim.
Because of our disposition of claim (2), we do not address whether this
claim was also properly dismissed on other grounds.
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.
With regard to claim (3), we find that the agency properly dismissed
this claim for untimely EEO Counselor contact. In claim (3), complainant
states that the agency misrepresented the rules and regulations regarding
sick leave. The record reveals that complainant was injured on the
job on September 2, 1995 and reported this injury to his supervisor
on September 5, 1995. At this time complainant requested time off.
The record shows that on September 13, 1995, complainant's supervisor
denied his request for light duty. Furthermore, the record shows that
complainant returned to work on January 16, 1996, and requested light
duty work which was denied by his supervisor. There are no incidents in
claim (3) occurring after January 16, 1996. Since complainant did not
initiate contact with an EEO Counselor until July 25, 1996, which was
well beyond forty-five days from January 16, 1996, we find that claim
(3) was properly dismissed for untimely counselor contact.
CONCLUSION
After a review of complainant's request for reconsideration, the
previous decision, and the entire record, the Commission finds that
complainant's request meets the criteria of 29 C.F.R. � 1614.405(b), and
it is the decision of the Commission to GRANT the complainant's request.
The decision of the Commission in Appeal No. 01972151 is MODIFIED.
The agency's decision dismissing claims (2) and (3) is AFFIRMED.
The agency's decision dismissing claims (1), (4), and (5) is REVERSED and
we REMAND claims (1), (4), and (5) to the agency for further processing in
accordance with this decision and applicable regulations. Because this
is the first decision in which the Commission is addressing whether the
agency properly dismissed the complaint, we shall provide the parties
with reconsideration rights.
ORDER (E0900)
The agency is ordered to process the remanded claims 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 (K0900)
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 19848,
Washington, D.C. 20036. 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)(Supp. V 1993). 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 (M0900)
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 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 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 (T0900)
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.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION
(R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. 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 (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:
______________________________
Frances M. Hart
Executive Officer
Executive Secretariat
February 2, 2001
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
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 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.