01a41701
09-28-2005
Martin G. Spinelli, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Martin G. Spinelli v. United States Postal Service
01A41701
September 28, 2005
.
Martin G. Spinelli,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A41701
Agency No.4A-110-0087-02
Hearing No. 160-2003-8538X
DECISION
Complainant filed a timely appeal with this Commission from an agency
final action, dated December 5, 2003, regarding his formal EEO 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. The Commission accepts the appeal in accordance with 29
C.F.R. � 1614.405.
On July 12, 2002, complainant filed the instant formal complaint.
Therein, complainant claimed that he was subjected to unlawful employment
discrimination on the basis of disability when effective May 4, 2002,
the work schedule for his limited duty job assignment was changed from
0630-1500 to 0800-1630.
On December 24, 2002, the agency issued a final decision dismissing the
complaint for failure to state a claim. The agency reasoned that the
claim was an impermissible collateral attack on the Office of Workers'
Compensation Programs (OWCP) forum.
On appeal, the Commission determined that �the matter raised in the
instant complaint is separate from complainant's OWCP claim, and is
within the purview of EEOC Regulations.� The Commission reversed
the agency decision to dismiss the instant complaint and remanded the
complaint to the agency for further processing. Spinelli v. USPS,
EEOC Appeal No. 01A31429 (April 17, 2003).
At the conclusion of the investigation, complainant received a copy of the
investigative report and requested a hearing before an EEOC Administrative
Judge (AJ). On December 2, 2003, the AJ issued a decision without a
hearing, dismissing the complaint for failure to state a claim.
The AJ found that �the evidence indicates that the complainant's
claim, his challenge of the Agency's changing of his work hours for
his limited duty assignment, is dismissible as a collateral attack on
the determination by the [OWCP] . . . .� According to the AJ, when an
employer finds a limited duty job that it believes meets the medical
restrictions of an employee, the OWCP makes the final determination as
to whether the job is appropriate. The AJ noted that the complainant
did not challenge the agency's assertion that he was working within
OWCP-approved duties. Therefore, the AJ concluded that �[c]omplainant is
not alleging that the agency discriminated against him by assigning him to
a position outside the accepted OWCP medical restrictions, but rather that
the OWCP-approved restrictions are incorrect and in need of revision.�
On December 5, 2003, the agency issued a final action implementing the
AJ's decision to dismiss the complaint.
The Commission has 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);
Kleinman v. United States Postal Service, EEOC Request No. 05940585
(September 22, 1994); Lingad v. United States Postal Service, EEOC
Request No. 05930106 (June 25, 1993).
In the instant case, however, complainant clearly and repeatedly claims
that he was discriminated against when his duty hours were changed from
0630 to 1500, to 0800-1630 in violation of his doctor's restrictions.
The EEO Counselor's Report and pre-complaint documentation do not contain
any reference to a determination by the OWCP. As stated in our prior
decision, we find that complainant has alleged a personal harm or loss
to a term, condition or privilege of his employment.
Accordingly, the agency's final action, implementing the AJ's dismissal
of the instant complaint for failure to state a claim is REVERSED.
The complaint is REMANDED to the agency for further processing in
accordance with this decision and the Order below.
ORDER
The agency shall submit to the Hearings Unit of the EEOC New York
District Office a request for a hearing within fifteen (15) calendar
days of the date this decision becomes final. The agency is directed
to submit a copy of the complaint file to the EEOC Hearings Unit within
fifteen (15) calendar days of the date this decision becomes final.
The agency shall provide written notifications to the Compliance Officer
at the address set forth below that the request and complaint file have
been transmitted to the Hearings Unit.
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
September 28, 2005
__________________
Date