0120122794
12-12-2012
Morris Aikins, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Western Area), Agency.
Morris Aikins,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Western Area),
Agency.
Appeal No. 0120122794
Agency No. 4E-852-0056-12
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated May 24, 2012, dismissing his complaint of unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a City Carrier at the Agency's Air Mail facility in Albuquerque, New Mexico.
On April 27, 2012, Complainant filed a formal complaint alleging, in chronological order, that the Agency subjected him to discrimination on the basis of race (African-American) when:
1. On November 1, 2011, management failed to accommodate Complainant by providing him with a particular type of vehicle in accordance with his medical restrictions;
2. On November 22, 2011, management harassed Complainant about his use of Family Medical Leave when management called him in for a fact-finding interview; and
3. On December 15, 2011, Complainant became aware that management failed to submit his worker's compensation papers in a timely and appropriate manner.
With regard to claim one (management failed to provide a requested vehicle), the record shows that Complainant requested the use of a specific vehicle after he was injured. The Agency did not provide the requested vehicle to Complainant. The record does not show that the Agency provided the vehicle to other employees, under similar circumstances.
With regard to claim two, the record shows that, on November 22, 2011, Complainant was called in for a fact-finding conference regarding his use of leave under the Family Medical Leave Act (FMLA). Complainant asserts that the fact-finding was unjust because management should have first checked to see if his request met the FMLA qualifications before convening the fact-finding.
With regard to claim three, the record shows that Complainant submitted paperwork for an October 26, 2011 accident and injury. The station manager did not report the accident to the Compensation Office until approximately December 22, 2011. Because the station manager did not forward his paperwork in accordance with the Department of Labor's requested time frames, the Department of Labor's Office of Workers Compensation Programs rejected Complainant's claim.
Complainant initiated this complaint on December 29, 2011. According to EEO Specialist, and as stated on the Agency's April 18, 2012 Notice of Right, the "claim of discrimination [was] initiated on December 29, 2011."
His formal complaint only alleged race discrimination. The record shows that, during the pre-complaint process, Complainant claimed discrimination based on physical disability, as well as race.
The Agency dismissed the complaint for two reasons: 1) untimely EEO contact and 2) failure to state a claim. The Agency reasoned that Complainant's EEO contact occurred on January 19, 2012, which would render the claims untimely.
Alternatively, the Agency reasoned that the issue regarding the denial of the OWCP claim was a collateral attack.
The instant appeal followed.
ANALYSIS AND FINDINGS
We will address each of the claims, sequentially.
Claim One - Failure to provide a vehicle as an accommodation
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of discrimination be brought to the attention of the EEO Counselor within forty-five (45) days of the date of the alleged discrimination or challenged personnel action.
With regard to claim one that management failed to accommodate Complainant by providing him with a particular type of vehicle in accordance with his medical restrictions, the alleged discriminatory event described occurred on November 1, 2011, but the Agency concluded erroneously that Complainant did not initiate contact with an EEO Counselor until January 19, 2012, which would be beyond the forty-five (45) day limitation period.
Where, as here, there is an issue of timeliness, "[a]n agency always bears the burden of obtaining sufficient information to support a reasoned determination as to timeliness." Guy v. Department of Energy, EEOC Request 05930703 (January 4, 1994) (quoting Williams v. Department of Defense, EEOC Request No. 05920506 (August 25, 1992)). In this case, the record documents that Complainant initiated his EEO contact on December 29, 2011, which was timely. Consequently, we find that the Agency failed to meet its burden in this case of establishing that Complainant's initial EEO counseling contact was untimely made.
In addition, however, EEOC Regulation 29 C.F.R. � 1614.107(a)(1) provides, in relevant part, that an agency shall dismiss a complaint 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. 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. 0593109 (April 21, 1994).
In this case, Complainant alleged discrimination on the basis of race, but he makes no claim that the Agency treated him differently than others similarly situated, not of his race. Stated differently, he does not allege that the Agency provided others, not of his race, the use of vehicles that it denied to him.
Assuming for purposes of this analysis that Complainant had certain medical restrictions, he does not claim that the Agency denied him a reasonable accommodation due to racial animus. On the contrary, he did not identify disability as a basis.
Claim Two - Unjust harassment about his use of FMLA leave
The date of claim two is November 22, 2011, although Complainant stated in his complaint that the harassment actually began on November 1, 2011. For purposes of our analysis, we will find that the contact was timely made on December 29, 2011.
Complainant does not allege that he was subjected to any personnel or disciplinary action. He challenges being called into a single fact-finding interview, but he does not allege that he suffered any harm because of being called into the fact-finding interview. We find that this allegation fails to state a claim.
Claim Three - Management's delay in submitting paperwork
The pertinent record shows that Complainant completed a "form CA2A" for an injury that occurred on October 26, 2011. On December 15, 2011, Complainant learned that management had not submitted his injury claim to the Health and Resource Management Office; and management did not transmit the form to the Department of Labor until December 20, 2011. The Department of Labor denied Complainant's claim because the paperwork was not submitted within the requested timeframe. We find that Complainant timely initiated contact with the EEO Counselor.
We find, however, that the Agency properly dismissed the claim three for a failure to state a claim when it found that Complainant's allegations constituted a collateral attack on the Department of Labor's rejection of his claims. A claim that can be characterized as a collateral attack, by definition involves a challenge to another forum's proceeding, such as the workers' compensation process. See Fisher v. Dep't of Defense, EEOC Request no. 05931059 (July 15, 1994) (challenge to agency's appeal within the workers' compensation process fails to state a claim as an EEO complaint).
Even broadly reading the formal complaint and related materials on the record, we do not construe Complainant as alleging that because of his race or reprisal for any prior protected activity, the Agency intentionally held or failed to process his paperwork to deprive him of benefits.
Upon review and for the reasons stated herein, the Commission finds that Complainant's complaint was properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(2), for failure to state a claim. We AFFIRM on that basis.
CONCLUSION
Accordingly, we MODIFY the Agency's final decision dismissing Complainant's complaint. We AFFIRM the dismissal for a failure to state a claim.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 tends 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), at 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 77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
December 12. 2012
__________________
Date
2
0120122794
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120122794