L. C. Wade, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionFeb 2, 2001
05980149 (E.E.O.C. Feb. 2, 2001)

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.