01a61468
08-23-2006
Timothy C. Wilkinson, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Timothy C. Wilkinson,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A61468
Agency No. 4H-300-0253-05
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated November 28, 2005, dismissing his complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.
In his complaint, complainant alleged that he was subjected to
discrimination on the basis of reprisal for prior protected EEO activity1
when:
1. On July 19, 2005, complainant became aware that a supervisor listed
derogatory information on his CA-1 form for the Office of Workers'
Compensation Programs (OWCP). Complainant then learned that another
supervisor listed his incident incorrect on the same form.
2. On June 17, 2005, complainant was forced to carry his route despite
his medical documentation.
The agency dismissed claim (1) pursuant to 29 C.F.R. � 1614.107(a)(1)
for failure to state a claim. Specifically, the agency indicated that
the claim constituted a collateral attack. As for claim (2), the agency
noted that complainant contacted the EEO Counselor on August 11, 2005.
Therefore, complainant's contact was some sixty-two days after the
incident asserted in claim (2). Accordingly, the agency dismissed claim
(2) for failure to raise the matter in a timely manner with the EEO
Counselor.
Complainant appealed. Complainant asserted that he was in fact aggrieved
by the supervisors' actions regarding the OWCP forms.
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in
relevant part, that an agency shall dismiss a complaint that fails to
state a claim. An agency shall accept a complaint from any aggrieved
employee or applicant for employment 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, .106(a). The Commission's federal sector case precedent has
long defined an "aggrieved employee" as one 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 (April 21, 1994).
With regard to claim (1), 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).
Complainant asserted that the agency's action resulted in the denial
of his OWCP claim. Upon review, we find that complainant is using the
EEO complaint process improperly to lodge a collateral attack on the
OWCP claim. Therefore, we find that the agency properly dismissed claim
(1) for failure to state a claim.
EEOC Regulation 29 C.F.R. �1614.107(a)(2) states that the agency shall
dismiss a complaint or a portion of a complaint that fails to comply
with the applicable time limits contained in �1614.105, �1614.106 and
�1614.204(c), unless the agency extends the time limits in accordance
with �1614.604(c).
EEOC Regulation 29 C.F.R. �1614.105(a)(1) provides that an aggrieved
person must initiate contact with an EEO Counselor within 45 days of
the date of the matter alleged to be discriminatory or, in the case of
a personnel action, within 45 days of the effective date of the action.
EEOC Regulation 29 C.F.R. �1614.105(a)(2) allows the agency or the
Commission to extend the time limit if the appellant can establish that
appellant was not aware of the time limit, that appellant did not know
and reasonably should not have known that the discriminatory matter
or personnel action occurred, that despite due diligence appellant
was prevented by circumstances beyond his control from contacting the
EEO Counselor within the time limit, or for other reasons considered
sufficient by the agency or Commission.
The Commission has stated that since an employer has an ongoing
obligation to provide a reasonable accommodation, failure to provide such
accommodation constitutes a violation each time the employee needs it.
See "Threshold Issues," EEOC Compliance Manual, at 2-73 (revised July
21, 2005). In his initial contact with the EEO Office, complainant
asserted that he was forced to carry his route in spite of his medical
documentation on June 17, 2005 and thereafter. Further, on his formal
complaint, complainant asserted that management continued, after the
June 17 incident, to insist that he carry his route despite his medical
documentation. Based on the statements from complainant, we find that
complainant has asserted a timely denial of reasonable accommodation.
Accordingly, we find that the agency's dismissal of claim (2) pursuant
to 29 C.F.R. � 1614.107(a)(2) was appropriate.
Therefore, we affirm the dismissal of claim (1). However, the Commission
reverses the agency's final decision's dismissal of claim (2) and remands
that claim for further processing in accordance with the order below.
ORDER (E0900)
The agency is ordered to process the remanded claim(2) 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 (K0501)
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)
(1994 & Supp. IV 1999). 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 (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 (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.
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
August 23, 2006
__________________
Date
1 We note that complainant contacted the EEO Counselor alleging
discrimination on the bases of race and reprisal. However, on his formal
complaint, complainant only marked the basis of reprisal for the instant
complaint.
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01A61468
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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01A61468