0120081683
05-15-2008
Lionel Williams, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Lionel Williams,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120081683
Agency No. 4G-780-0002-08
DECISION
Complainant filed a timely appeal with this Commission from the final agency decision dated January 23, 2008, dismissing his formal 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.
On October 5, 2007, complainant initiated EEO Counselor contact. Informal efforts to resolve his concerns were unsuccessful.
On January 2, 2008, complainant filed a formal complaint, claiming that he was the victim of unlawful employment discrimination on the basis of disability.
On January 23, 2008, the agency issued the instant final decision. Therein, the agency determined that complainant's complaint was comprised of two claims, that the agency identified as follows:
1. On July 9, 2007, complainant was forced to work on his sixth day; and on July 10, 2007, he was charged with 4 hours of annual leave; and
2. On July 25, 2007, and through December 2007, he was harassed regarding his on-the-job injury claim, because he was not given OWCP [Office of Workers Compensation] Form CA-1, Federal Employee's Notice of Traumatic Injury Claim and Continuation of Pay/ Compensation.1
The agency dismissed claim 1, pursuant to 29 C.F.R. � 1614.107(a)(2), on the grounds of untimely EEO Counselor contact. Specifically, the agency determined that complainant did not contact an EEO Counselor on the matter raised in claim 1 until October 5, 2007, beyond the 45-day time limit set by the Regulations.
The agency dismissed claim 2 for failure to state a claim. The agency determined that claim 2 relates to OWCP matters, and therefore constitutes a collateral attack of the determination of another forum.
Claim 1
EEOC Regulation 29 C.F.R � 1614. 107 (a) (1) provides that the agency shall dismiss a complaint that fails to state a claim under � 1614.103 or � 1614.106(a). Section 1614. 105 (a) (1) provides that an aggrieved person must initiate contact with a Counselor within 45 days of the matter alleged to be discriminatory or, in the case of personnel action, within 45 days of the effective date of the action.
The record discloses that the alleged discriminatory events in claim 1 occurred in July 2007, but that complainant did not initiate contact with an EEO Counselor until October53, 2007, which is beyond the forty-five day limitation period. On appeal, complainant has presented no persuasive arguments or evidence warranting an extension of the time limit for initiating EEO Counselor contact. Accordingly, the agency's final decision dismissing claim 1 in complainant's complaint is AFFIRMED.
Claim 2
EEOC Regulation 29 C.F.R. �1614.107(a)(1) provides for the dismissal of a complaint which fails to state a claim within the meaning of 29 C.F.R. �1614.103. In order to establish standing initially under 29 C.F.R. �1614.103, a complainant must be either an employee or an applicant for employment of the agency against which the allegations of discrimination are raised. In addition, the claims must concern an employment policy or practice which affects the individual in his or her capacity as an employee or applicant for employment. 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; �1614.106(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).
The record also indicated that claim 2 in the complaint deals with complainant's dissatisfaction with the processing of his OWCP claim and such concerns have to be addressed in that forum and not through the EEO process. See Reloj v. Department of Veterans Affairs, EEOC Request No. 05960545 (June 15, 1998). The final agency decision dismissing claim 2 is also AFFIRMED.
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
May 15, 2008
__________________
Date
1 The agency also properly declined to consider other matter that complainant had raised during pre-complaint processing, because complainant did not identify these matters in the instant formal complaint.
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0120081683
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120081683