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