Rastus Henderson, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionAug 26, 1999
01991168 (E.E.O.C. Aug. 26, 1999)

01991168

08-26-1999

Rastus Henderson, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Rastus Henderson v. United States Postal Service

01991168

August 26, 1999

Rastus Henderson, )

Appellant, )

)

v. ) Appeal No. 01991168

) Agency No. 4F-950-0156-98

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

)

DECISION

Appellant filed an appeal with this Commission from a final decision of

the agency 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., the Age Discrimination in Employment Act of 1967,

as amended, 29 U.S.C. �621 et seq., and the Rehabilitation Act of 1973,

as amended, 29 U.S.C. �791 et seq. The final agency decision was received

by appellant on October 27, 1998. The appeal was postmarked November

23, 1998. Accordingly, the appeal is timely (see 29 C.F.R. �1614.402(a)),

and is accepted in accordance with EEOC Order No. 960, as amended.

ISSUE PRESENTED

The issue on appeal is whether the agency properly dismissed a portion

of appellant's complaint.

BACKGROUND

Appellant contacted an EEO counselor on May 26, 1998, regarding

allegations of discrimination. Specifically, appellant alleged that he

was discriminated against when:

(1) On unspecified dates, two Letters of Warning were issued to appellant.

Appellant also alleges that the Letters were dismissed pursuant to

Article 16 of the National Agreement.

(2) On unspecified dates, appellant was not assigned work in accordance

with CA-17, limited duties.

(3) Continuing from January 1998, through May 1998, medical documents

submitted by appellant were not honored. Appellant also alleges that

his name was forged on leave documents in January and June 1998, and he

was not paid.

(4) On unspecified dates, the decision of the Department of Labor

regarding appellant's on-the-job injury was not accepted by the agency.

Appellant alleges that the agency would not mail Forms CA-7 and CA-8 to

the Department of Labor; and

(5) On unspecified dates, appellant was not allowed to work within his

disability, causing additional injuries.

Informal efforts to resolve appellant's concerns were unsuccessful.

Accordingly, on August 8, 1997, appellant filed a formal complaint

alleging that he was the victim of unlawful employment discrimination

on the bases of race (Black), color (unspecified), physical disability

(heart), mental disability (stress), sex (male), age (11/12/42), and

reprisal (prior EEO activity).

On October 19, 1998, the agency issued a final decision (FAD) accepting

for investigation allegations (2), (3) and (5), but dismissing allegation

(1) for stating the same claim pending before or decided by the agency or

Commission and allegation (4) for failure to state a claim. Specifically,

the agency determined that on January 21, 1998, in an informal complaint

having agency case No. 4F-950-0086-98, appellant had previously raised

allegation (1) regarding two Letters of Warning. The FAD determined

also that appellant was issued a Notice of Right to File with respect

to the Letters of Warning, but never filed a formal complaint concerning

the matter. The agency dismissed allegation (1) indicating that it was

identical to that raised by appellant in agency case No. 4F-950-0086-98.

The agency's October 19, 1998 FAD dismissed allegation (4) of appellant's

complaint for failure to state a claim. The agency determined that

appellant's allegation involves the processing of his request for

workers' compensation for an on-the-job injury. The agency indicates

that appellant's claim is under the jurisdiction of the U.S. Department

of Labor and that any inquiry regarding the processing of appellant's

claim should be directed to the Office of Workers' Compensation (OWCP)

and not adjudicated within the EEO process of the agency.

ANALYSIS AND FINDINGS

EEOC Regulation 29 C.F.R. �1614.107(a) provides that the agency shall

dismiss a complaint or a portion of a complaint that states the same

claim that is pending before or has been decided by the agency or

Commission. Here, the agency maintains that allegation (1) regarding

two Letters of Warning had previously been raised by appellant in agency

pre-complaint number 4F-950-0086-98. The agency indicates further that

while appellant was properly issued a Notice of Right to File with respect

to his pre-complaint, he never filed a formal discrimination complaint.

A review of the record reveals that the agency has not provided the

Commission with a copy of appellant's prior informal complaint, or

the agency's Notice of Right to File in connection with the informal

complaint. Without these documents, we are unable to make an independent

determination as to whether allegation (1) of appellant's complaint is

in fact, identical to that previously raised by appellant. Therefore,

the agency's decision dismissing allegation (1) of appellant's complaint

is VACATED. The allegation is REMANDED to the agency for supplementation

of the record.

The agency dismissed allegation (4) of appellant's complaint for failure

to state a claim. The FAD determined that appellant's allegation

regarding the processing of his workers' compensation claim was within

the exclusive jurisdiction of the U.S. Department of Labor. The agency

determined also that appellant's allegations regarding his claim, were

not properly before the agency as part of the EEO administrative process.

In Commission decision Horvath v. Department of the Navy, EEOC Appeal

No. 01953361 (July 8, 1996), request for reconsideration denied, EEOC

Request No. 05960780 (October 23, 1998), we reaffirmed prior rulings that

an EEO complaint alleging discrimination in connection with a workers'

compensation claim before the OWCP states a claim within the Commission's

jurisdiction only under limited circumstances. See Schultz v. United

States Postal Service, EEOC Request No. 05950173 (September 26, 1996);

Hogan v. Department of the Army, EEOC Request No. 05940407 (September

24, 1994).

In particular, a complainant may not use the EEO process to launch

a collateral attack on the workers' compensation process. See Story

v. United States Postal Service, EEOC Request No. 05960314 (October 18,

1996). Additionally, the Commission has recognized that the agency has

the right to represent its position and interest in the OWCP Forum,

and will not review decisions which would require it to judge the

merits of a workers' compensation claim. See Hogan, EEOC Request

No. 05940407. However, where, as here, a complainant alleges that

the agency discriminated in the processing of a workers compensation

claim -- for example, by failing to submit required paperwork -- then

the allegation states an EEO claim. See Foster v. United States Postal

Service, EEOC Appeal No. 01951370 (May 8, 1995), request to reconsider

denied, EEOC Request No. 05950693, (May 16, 1996).

Upon review, we determine that in allegation (4) of appellant's complaint,

he is alleging that the agency engaged in discriminatory conduct with

respect to his workers' compensation claim when it failed to mail Forms

CA-7 and CA-8 to the Department of Labor. Consistent with Commission

decisions concerning such an allegation, we find that appellant has

stated a justiciable claim of employment discrimination. In that regard,

the agency's decision dismissing allegation (4) of appellant's complaint

is REVERSED. The allegation is REMANDED to the agency for processing

in accordance with this decision and applicable regulations.

CONCLUSION

Accordingly, the agency's decision to dismiss allegation (1) is VACATED

and allegation (1) is REMANDED to the agency for supplementation of

the record. The agency's decision dismissing allegation (4) is REVERSED

and we remand allegation (4) for further processing in accordance with

this decision and the Order below.

ORDER

The agency is ORDERED to take the following actions:

The agency shall undertake a supplemental investigation to determine if

allegation (1) of the instant complaint states the same claim as that

raised in agency case No. 4F-950-0086-98.

The agency shall supplement the record with copies of appellant's

prior informal complaint No. 4F-950-0086-98, as well as copies of the

Counselor's Report and the Notice of Right to File associated with

informal complaint No. 4F-950-0086-98.

The agency shall determine whether to dismiss allegation (1) pursuant

to 29 C.F.R. �1614.107(a) within thirty (30) calendar days of the date

this decision becomes final. The agency shall either issue a letter to

the appellant accepting allegation (1) or issue a new decision dismissing

allegation (1). A copy of the agency's letter accepting allegation (1),

or a copy of the new decision dismissing allegation (1) must be sent to

the Compliance Officer as referenced below.

The agency is ordered to process allegation (4) in accordance with 29

C.F.R. �1614.108. The agency shall acknowledge to the appellant that

it has received allegation (4) 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.

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. �1614.604(c).

RIGHT TO FILE A CIVIL ACTION (R0993)

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. 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:

August 26, 1999

____________________________

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations