01A05003
10-02-2001
Robert S. Tucker, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Pacific Area) Agency.
Robert S. Tucker v. United States Postal Service
01A05003
October 2, 2001
.
Robert S. Tucker,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Pacific Area)
Agency.
Appeal No. 01A05003
Agency No. 4F-913-0060-00
DECISION
Complainant filed a timely appeal with this Commission from an
agency's decision dated March 20, 2000 dismissing his complaint of
unlawful employment discrimination in violation of Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �
791 et seq. In his complaint, complainant alleged that he was subjected
to discrimination on the basis of disability (back and neck injury) when:
On August 8, 1999, the Department of Labor, Office of Workers'
Compensation Programs (OWCP) and USPS conspired to reinstate complainant,
for the sole purpose of terminating his OWCP benefits and inducing him
to take straight disability;
On December 3, 1999, an incomplete, unethical and tainted re-employment
examination was administered to him;
He was advised by an Injury Compensation Supervisor (ICS) before the
results of his examination were known, that he would pass because the
agency must take him back.
The agency dismissed the claim pursuant to EEOC Regulations at 29
C.F.R. � 1614.105 (1) and � 1614.107(a)(2) for failure to comply with the
applicable 45 day time limit, and pursuant to 29 C.F.R. � 1614.107 (a)
for failure to state a claim under 29 C.F.R. � 1614.103 or � 1614.106(a).
Specifically, the agency determined that complainant's claim is within
the exclusive jurisdiction of the Department of Labor, and is outside
the purview of the EEOC regulations.
Complainant alleges that the Commission has jurisdiction over this
complaint because the agency decided to re-employ him despite knowing
that he would not be able to function in a work environment due to his
disability, that his disability was likely to deteriorate, and that
it would create an economic hardship for him. He contends that this
action constitutes a direct and personal deprivation at the hands of
his employer, the agency.
The Commission has held that a complainant states a claim where he or
she alleges that, motivated by discriminatory animus, the agency took
specific steps to interfere with a workers' compensation claim. Bray
v. United States Postal Service, EEOC Appeal No. 01944243 (February 6,
1995), req. to reopen den., EEOC Request No. 05950410 (February 1, 1996);
Hogan v. Department of the Army, EEOC Request No. 05940407 (September 29,
1994); O'Neal v. United States Postal Service, EEOC Request No. 05900620
(August 30, 1990). These cases typically involve failure of the agency
to provide information or signatures necessary to process the workers'
compensation claim. See id. Here, complainant alleges that the agency
conspired with OWCP to force him to return to work despite having a
medical condition that makes him unemployable.
To address this aspect of his complaint, the Commission would have to
review the determinations of OWCP which led to the determination that
complainant's disability did not preclude his re-employment. Review of
OWCP determinations is within the jurisdiction of the agency's Employees'
Compensation Appeals Board, not the Commission, and does not fall within
the limited circumstances under which a complainant may appeal to the
Commission. See Hogan, EEOC Request No. 05940407 (September 29, 1994);
Gray v. Department of the Army, EEOC Appeal No. 01944944 (August 8, 1995).
Accordingly, we AFFIRM the agency's dismissal of complainant's claim.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 (S0900)
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. 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 (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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
October 2, 2001
__________________
Date