Crispin J. Duarte, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionFeb 16, 2007
0120070703 (E.E.O.C. Feb. 16, 2007)

0120070703

02-16-2007

Crispin J. Duarte, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Crispin J. Duarte,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 0120070703

Agency No. 4G-760-0157-06

DECISION

Complainant filed a timely appeal with this Commission from the final

agency decision dated November 9, 2006, dismissing his formal 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation

Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination

in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.

In the instant complaint, filed on October 30, 2006, complainant claimed

that he was subjected to discrimination on the bases of disability, age,

and in reprisal for prior EEO activity.

In its November 9, 2006 final decision, the agency determined that the

instant complaint was comprised of the following claim:

on September 10, 2006, the Department of Labor, Office of Workers'

Compensation Programs (OWCP), returned complainant to duty and the Postal

Service provided him a Rehabilitation Assignment from City Carrier to a

Mail Processing Clerk; and management constantly asked him to go beyond

his restrictions.

The agency dismissed the complaint for failure to state a claim pursuant

to 29 C.F.R. � 1614.107(a)(1). The agency noted that complainant had

asserted that he was forced to accept a change from being a City Carrier

to a Mail Processing Clerk, although management knew his primary doctor

did not agree with the second opinion doctor from OWCP returning him

to work. However, the agency determined that this matter constituted

an impermissible collateral attack on the OWCP forum.

Regarding complainant's claim that management constantly asked him to go

beyond his restrictions, the agency determined that there was no evidence

in record indicating that the alleged action affected a term, condition

or privilege of his employment. Specifically, the agency noted in his

formal complaint, complainant claimed management asked him to go to the

office and sit if his medication was making him unable to function.

With respect to complainant's claim that he was forced to return to work

against his own doctor's advice, the Commission determines that this

claim clearly relates to an OWCP decision that he should return to work.

The proper forum for contesting the outcome of an OWCP claim is with

the Department of Labor, and not through the EEO complaint process. 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). Therefore, we will AFFIRM this

portion of the agency's dismissal decision.

However, with respect to complainant's claim that, once he returned to

work in the Mail Processing position, management constantly asked him

to go beyond his restrictions, we find that complainant has asserted

an allegation that the agency failed to provide him with reasonable

accommodation for his disability. This is sufficient to state a

justiciable claim, and that agency's arguments prematurely address the

merits of that claim. The dismissal of this portion of the complaint is

REVERSED and this claim is REMANDED to the agency for further processing

in accordance with the Order set forth below.

ORDER (E0900)

The agency is ordered to process the remanded claim in accordance with 29

C.F.R. � 1614.108 et seq. 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 (R0900)

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 within ninety (90) calendar days from the date

that you receive this decision. 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 (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

February 16, 2007

__________________

Date

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0120070703

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

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0120070703

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