01982801
04-16-1999
Melvin C. Helms v. United States Postal Service
01982801
April 16, 1999
Melvin C. Helms, )
Appellant, )
)
v. ) Appeal No. 01982801
) Agency No. 4-D-280-0027-98
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
The Commission finds that the agency erred, in part, in its February 18,
1998 decision dismissing appellant's complaint on the basis of failure
to state, pursuant to the provisions of 29 C.F.R. �1614.107(a).
The record shows that appellant alleged that he had been discriminated
against on the bases of age (59), physical disability (asthma) and mental
disability (major depression) when on November 1, 1997, he became aware
that agency officials delayed paperwork submitted for his Office of
Workers' Compensation Program claim, which in turn delayed his benefits
and caused additional physical, mental and financial damage. The record
further shows that by letter dated August 20, 1997, OWCP asked appellant
to respond to the agency's statements questioning the validity of his
claim.
An agency shall accept a complaint from any aggrieved employee or
applicant 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
has held that while the regulations do not define the term "aggrieved
employee," the United States Supreme Court has interpreted it to mean
an employee 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 (Apr. 21, 1994).
"To state a claim under our regulations, an employee must allege and show
an injury in fact." Id. (citing Hackett v. McGuire Bros., 445 F.2d 447
(3d Cir. 1971)). "Specifically, an employee must allege and show a
`direct, personal deprivation at the hands of the employer,' that is,
a present and unresolved harm or loss affecting a term, condition or
privilege of his/her employment." Id. (citing Hammonds v. United States
Postal Serv., EEOC Request No. 05900863 (Oct. 31, 1990); Taylor v. United
States Postal Serv., EEOC Request No. 05900367 (June 2, 1990)).
We have previously held that allegations which challenge the proceeding
or decision of another forum constitute a collateral attack and fail to
state a claim under EEOC Regulations. Fisher v. Department of Defense,
EEOC Request No. 05930106 (July 15, 1994). The Commission has also held
that it is within OWCP's jurisdiction to determine whether a compensation
claim with OWCP has merit, and OWCP claims are not appealable to the EEOC.
Hogan v. Department of the Army, EEOC Request No. 05940407 (September
29, 1994).
In the present complaint, appellant's claims that he had to respond
to OWCP because of agency statements constitute a collateral attack
on the OWCP process. However, the record shows that appellant further
claims that USPS officials purposely delayed sending his paperwork to
the OWCP. This is sufficient to state a claim under EEOC Regulations.
Padilla v. USPS, EEOC Request No. 05940634 (June 27, 1995).
Accordingly, the agency's decision dismissing appellant's claim about his
response to OWCP was proper and is hereby AFFIRMED. Appellant's claim
that USPS officials purposely delayed sending his paperwork to the OWCP
was improperly dismissed. This allegation is hereby REMANDED for further
processing in accordance with this decision and applicable regulations.
ORDER (E1092)
The agency is ORDERED to process the remanded allegation in accordance
with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant
that it has received the remanded allegation within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue to
appellant a copy of the investigative file and also shall notify appellant
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 appellant requests a final decision
without a hearing, the agency shall issue a final decision within sixty
(60) days of receipt of appellant's request.
A copy of the agency's letter of acknowledgment to appellant 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 (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant 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. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant 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. �� 1614.408 and 1614.409. 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
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
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. �l6l4.604(c).
RIGHT TO FILE A CIVIL ACTION (T0993)
This decision affirms the agency's final decision 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 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.
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 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 (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:
April 16, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations