01995677_r
05-23-2001
Kenneth E. Thompson Jr., Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Kenneth E. Thompson Jr. v. United States Postal Service
01995677
May 23, 2001
.
Kenneth E. Thompson Jr.,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01995677
Agency No. 4B-040-0009-99
DECISION
Complainant filed a timely appeal with this Commission from a final
agency decision (FAD) 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.
Complainant alleged that he was discriminated against on the basis of
disability when:
during the period 1995-November 1997, the agency failed to provide him
with a healthy work environment;
during the period November 1997-September 1998, the agency failed to
contact complainant to make an inquiry concerning his medical status; and
on November 18, 1998, complainant became aware that the agency challenged
and/or controverted complainant's claim for workers' compensation with
the U.S. Department of Labor, Office of Workers' Compensation (OWCP).
In its FAD, the agency dismissed claims (1) and (2) pursuant to 29
C.F.R. � 1614.107(a)(2) for untimely EEO Counselor contact and dismissed
claims (2) and (3) pursuant to 29 C.F.R. � 1614.107(a)(1) for failure
to state a claim.
On appeal, complainant argues that the lies of the agency officials
caused him harm in that �the Labor Department took 15 months to accept
his claim instead of the normal 8-10.� In response, the agency restates
the position it took in its final decision, and requests that we affirm
its final decision.
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the Equal Employment
Opportunity Counselor within forty-five (45) days of the date of the
matter alleged to be discriminatory or, in the case of a personnel action,
within forty-five (45) days of the effective date of the action.
The record establishes that complainant initiated EEO contact on November
17, 1998. In his complaint, complainant stated that during the period
1995 through November 1997, he was subjected to an unhealthy work
environment. The agency determined that complainant's EEO contact was
untimely because he should have been aware of the alleged discriminatory
action at the time that the alleged discriminatory events occurred.
We find that the agency's properly dismissal of claim 1 on the grounds
of untimely EEO Counselor contact was proper and is AFFIRMED.
Regarding claim 2, the Commission determines that the alleged
discriminatory event occurred from November 1997 through September 1998,
but that complainant did not contact an EEO Counselor until November 17,
1998, which is beyond the forty-five day limitation period. Complainant
has provided no adequate justification for the delay in contacting an
EEO Counselor. Accordingly, the agency's decision to dismiss claim 2
is AFFIRMED. Because we affirm the agency's decision to dismiss claim
2 for the reason stated herein, we find it unnecessary to address the
agency's alternative grounds for dismissal.
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 respect to claim 3, the Commission finds that the matter raised
therein constitutes a collateral attack on the OWCP process and, as such,
fail to state a cognizable claim. See 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). We find that the agency properly dismissed claim 3
for failure to state a claim. The agency's decision to dismiss claim
3 is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
May 23, 2001
__________________
Date