01a44425
04-28-2005
Douglas K. Olson, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Douglas K. Olson v. United States Postal Service
01A44425
April 28, 2005
.
Douglas K. Olson,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A44425
Agency No. 4-J-600-0150-04
DECISION
On May 5, 2004, complainant filed a formal EEO complaint wherein he
claimed that he was subjected to discriminatory harassment on the bases of
his race (Caucasian), religion (Christian), disability (Morton's Neuroma)
and in reprisal for his previous EEO activity under Title VII and the
Rehabilitation Act. The agency listed the following twelve claims:
On January 1, 28 and 29, 2004, complainant charged management with
having provided fraudulent information in their correspondence with the
Department of Labor to try to controvert complainant's OWCP claims.
On January 8, 2004, management issued complainant a Notice of Proposed
Removal, charging him with failure to properly perform the duties of
his position and absence without official leave (AWOL).
On January 8, 2004, management attempted to deny complainant the choice of
medical care provider by trying to force him to go to an agency contract
physician for evaluation and treatment.
On February 26, 2004, management issued complainant an Emergency Placement
in an Off-Duty Status with pay.
On February 26, 2004, management issued complainant a Letter of Decision,
affirming his removal from the agency effective March 6, 2004.
The District Manager should be addressed with regard to his racist
attitude toward the 95% White and Asian-Americans at the work facility.
A retaliation report filed on January 9, 2004, against complainant's
supervisor demonstrated that the supervisor's report concerning OWCP
file #102029360 was littered with perjury.
Complainant filed a second document regarding a promotional and
advancement opportunity lost on January 11, 2004.
Two additional fraud and mismanagement reports filed on January 28, 2004
and January 29, 2004, in conjunction with the January 1, 2004 report,
show a pattern of retaliation.
On March 6, 2004, complainant filed a scanning report schedule showing
clear disparate treatment when it comes to disciplinary action taken
against him by his supervisor as compared to other carriers, when scans
were missed on collections.
On April 6, 2004, the District Manager was personally charged for
a prejudicial attitude toward complainant's disability, as well as
employees with disabilities in general.
The acts that occurred on December 11 and 12, 2003 should not be excused
as rudeness on the part of a supervisor as expressed in the agency final
action addressing Agency No. 4J-600-0029-04.
By final action dated May 14, 2004, the agency dismissed claims 1, 7 and 9
pursuant to 29 C.F.R. �1614.107(a)(1) on the grounds of failure to state
a claim. The agency determined that the proper forum for complainant to
have raised his challenge to actions that occurred during the processing
of his OWCP claim was with the Department of Labor. The agency stated
that it is inappropriate to attempt to use the EEO process to collaterally
attack actions which occurred during the processing of a workers'
compensation claim. Claims 3, 4, 6, and 10-11 were also dismissed
on the grounds of failure to state a claim. With regard to claim 3,
the agency determined that complainant was no longer aggrieved because
he was eventually allowed to see his own physician. With respect to
claim 4, the agency determined that complainant did not allege any harm
or loss, or that he suffered any direct or personal deprivation due to
the emergency placement in an off-duty status with pay. As for claims
6 and 10-11, the agency determined that complainant did not state that
he suffered any adverse actions that affected a term, condition, or
privilege of his employment. With regard to claims 8 and 12, the agency
dismissed them pursuant to 29 C.F.R. �1614.107(a)(1) on the grounds that
they state the same claim that is pending or has already been decided by
the agency or Commission. The agency determined that these claims were
previously decided by the agency in Agency No. 4J-600-0029-04. Finally,
the agency noted with regard to claims 2 and 5 that these claims are
appealable to the Merit Systems Protection Board, and therefore they
were accepted for investigation as a mixed case complaint.
In response, the agency asserts that the appeal is untimely. The agency
argues that complainant failed to file the instant appeal within the
30-day limitation period as he received the final action on May 15,
2004, and the Commission did not receive the appeal until June 17,
2004. The agency further argues that complainant has exhibited a
clear pattern of misuse of the EEO process. The agency states that
complainant repetitively provides the same documents with each of his
complaints and reiterates the same arguments. The agency states that
complainant continues to identify the same matters in time, place,
incident and parties.
Initially, we shall address the agency's assertion that the instant appeal
was untimely filed. The record indicates that complainant received the
agency's final action on May 15, 2004. The record further indicates
that complainant filed the instant appeal on June 14, 2004, the last
day of the 30-day filing period. Thus, the instant appeal was filed in
a timely fashion.
We observe that the agency accepted for investigation claims 2 and 5
as a mixed case complaint since the claims are appealable to the Merit
Systems Protection Board (MSPB). Therefore, claims 2 and 5 are not at
issue in this decision.
We have previously held, that where a complainant claims that the agency
discriminated in a manner pertaining to the merits of the workers'
compensation claims, for example, by submitting paperwork containing
allegedly false information, then the complaint does not state an EEO
claim. Pirozzi v. Department of the Navy, EEOC Request No. 05970146
(October 23, 1998) (allegedly false statements made by agency to OWCP
during OWCP's processing of a workers' compensation claim goes to
the merits of compensation claim); Hogan v. Department of the Army,
EEOC Request No. 05940407 (September 29, 1994) (reviewing a claim that
agency officials provided misleading statements to OWCP would require the
Commission to essentially determine what workers' compensation benefits
the complainant would likely have received). Moreover, the Commission
has also 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).
With regard to claim 1, we find that the portion of this claim that
involves falsified reports filed with the OWCP falls within the purview
of the OWCP. The EEO process lacks jurisdiction over such issues as the
proper forum for complainant to have raised his challenges to actions
which occurred during the OWCP process was in that process itself.
It is inappropriate to now attempt to use the EEO process to collaterally
attack actions which occurred during the OWCP process. In contrast to
the agency's interpretation of claim 1, we observe that claim 1 also
concerns reports that were prepared for review by agency officials.
We find that complainant has not shown that these reports caused him to
suffer harm to a term, condition, or privilege of his employment. To the
extent that complainant contends that these reports led to his removal,
we find that the reports do not state a claim independent of complainant's
removal. We find that the same rationale is applicable to claim 10.
Complainant claims that he received disparate treatment with regard to
when he missed scans on mail collections. Complainant states that the
missed scans were used as grounds for his removal. We find that the
missed scans do not state a claim independent of complainant's removal.
Accordingly, the dismissal of claims 1 and 10 on the grounds of failure
to state a claim was proper.
As for claim 3, where complainant claims that he was denied his choice
of medical care provider, we observe that this claim relates to an
OWCP claim. Similarly, we note that claim 7 pertains to a supervisor's
report concerning complainant's OWCP claim. We find that these matters
are not within the purview of the EEO process and instead fall within
the purview of the OWCP. Accordingly, claims 3 and 7 were properly
dismissed for failure to state a claim.
With regard to claim 9, we observe that this allegation concerns the
alleged false statements about complainant's on-the-job injuries made
by agency personnel for review by agency officials and OWCP. Based on
the reasoning set forth in our analysis of claims 1 and 7, this claim
does not state a claim. Accordingly, the agency's dismissal of claim
9 on the grounds of failure to state a claim was proper.
With regard to claim 4, we find that the emergency placement of
complainant in an off-duty status with pay did not cause him to suffer
harm or loss to a term, condition, or privilege of his employment.
As for claim 6, we observe that complainant has made a generalized claim
alleging that the District Manager is not responsive to the concerns
of Caucasian employees and Asian-Americans. Similarly, in claim 11,
complainant makes a claim that the District Manager is prejudiced against
him due to his disability and individuals with disabilities in general.
We find that this type of generalized grievance does not state a claim as
there is no specific allegation of harm made by complainant with regard
to a term, condition, or privilege of his employment. We find that the
agency properly dismissed claims 4, 6, and 11 on the grounds of failure
to state a claim.
Upon review of each of the incidents at issue in the context of their
overall effect, we find that the alleged actions of the complaint are
not sufficiently severe or pervasive to state a claim of harassment.
As for claims 8 and 12, we observe that these claims involve matters that
were set forth in Agency No. 4J-600-0029-04, which is currently on appeal
before the Commission in EEOC Appeal No. 01A43750. Complainant has not
shown how he was aggrieved apart from the same claims being considered
in Agency No. 4J-600-0029-04. Therefore, we find that these claims
state the same claim as that pending before the agency or Commission.
Accordingly, the agency's dismissal of claims 8 and 12 was proper pursuant
to 29 C.F.R. �1614.107(a)(1).
The agency's dismissal of claims 1, 3-4, and 6-12 is AFFIRMED for the
reasons set forth herein.
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
April 28, 2005
__________________
Date