0120083233
09-24-2008
Freddie W. Smith, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Freddie W. Smith,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120083233
Agency No. 4A110006608
DECISION
Complainant filed a timely appeal with this Commission from the
agency's decision dated June 12, 2008 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 his disability (sciatic
nerve damage) when on or about January 18, 2008, he received notice from
the Department of Labor informing him that his claim with the Office of
Workers' Compensation Programs (OWCP) was denied based on the agency's
challenge of his claim of an on-the-job injury.
The agency dismissed the complaint for failure to state a claim.
The agency stated that complainant's complaint pertains to the agency's
processing of his claim with OWCP and that his concerns should properly be
addressed by the Department of Labor. On appeal, complainant contends
that the agency discriminatorily provided false information to OWCP
which resulted in his claim being denied.
Where a complainant alleges that the agency discriminated in a manner
pertaining to the merits of the workers' compensation claim, 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 merits of compensation claim); Hogan v. Department of
the Army, EEOC Request No. 05940407 (September 29, 1994) (reviewing
an allegation 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); Reloj
v. Department of Veterans Affairs, EEOC Request No. 05960545 (June 15,
1998) (allegation that agency's provision of false information to the OWCP
resulted in denial of benefits is a collateral attack on OWCP's decision
and, thus, fails to state a claim). Because complainant's complaint in
the case at hand concerns allegedly false information provided to the
OWCP by the agency, the allegation fails to state a claim. The proper
forum for complainant to raise these challenges is before the Department
of Labor. Accordingly, we affirm the agency's final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (S0408)
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 (Z0408)
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
September 24, 2008
__________________
Date
2
0120083233
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
3
0120083233