01986777
08-31-1999
Patrick M. Galos, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Patrick M. Galos v. United States Postal Service
01986777
August 31, 1999
Patrick M. Galos, )
Appellant, )
)
v. ) Appeal No. 01986777
) Agency No. 4F-950-0083-98
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
On September 11, 1998, appellant filed a timely appeal with this
Commission from a final agency decision (FAD) received by him on
August 19, 1998, pertaining to his complaint of unlawful employment
discrimination in violation of Section 501 of the Rehabilitation Act of
1973, as amended, 29 U.S.C. �791 et seq. In his complaint, appellant
alleged that he was subjected to discrimination on the bases of physical
disability (Bilateral CTS, Degenerative Disc Disease, etc.) and in
reprisal for prior EEO activity when:
On December 18, 1997, an agency Injury Compensation Specialist provided
false information to the Department of Labor concerning appellant's
Office of Workers' Compensation Programs (OWCP) claim; and
Management failed to authorize in a timely manner a COP payment for an
industrial accident appellant suffered on October 10, 1997.
The agency dismissed appellant's complaint pursuant to EEOC Regulation 29
C.F.R. �1614.107(g), for failure to cooperate. Specifically, the agency
determined that dismissal was proper because appellant failed to respond
to a May 15, 1998 request for information pertaining to his complaint,
even though the request contained notice of the proposed dismissal.
The Commission notes that the May 15, 1998 request for information
contained a request that appellant provide an affidavit concerning
his allegations and that he provide evidence supporting his claim for
compensatory damages.
On appeal, appellant contends that he suffers from a chronic somatoform
disorder which affects his ability to meet deadlines. In support of
this contention, appellant provided a copy of a restriction evaluation
form which indicates that appellant suffers from a chronic somatoform
disorder. The Commission notes, however, that in the area where the
physician was to describe how the neuropsychiatric condition affected
appellant's interpersonal relations, the physician indicated, "requires
psychiatric evaluation."
As a preliminary matter, we find that dismissal of allegation (1) was
more appropriate pursuant to 29 C.F.R. �1614.107(a), for failure to state
a claim. EEOC Regulation 29 C.F.R. �1614.107(a) provides, in relevant
part, that an agency shall dismiss a complaint, or portion thereof,
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; �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 Commission has held that an employee cannot use the EEO complaint
process to lodge a collateral attack on another proceeding. Kleinman v.
USPS, EEOC Request No. 05940585 (September 22, 1994); Lingad v.
USPS, EEOC Request No. 05930106 (June 24, 1993). The proper forum
for appellant to have raised his challenges to actions which occurred
during the processing of his OWCP claim was with the Department of Labor.
It is inappropriate to now attempt to use the EEO process to collaterally
attack actions which occurred during the processing of his OWCP claim.
Consequently, we find that dismissal of allegation (1) was proper pursuant
to 29 C.F.R. �1614.107(a).<1>
EEOC Regulation 29 C.F.R. �1614.107(g) provides for the dismissal of a
complaint where the agency has provided the complainant with a written
request to provide relevant information or otherwise proceed with the
complaint, and the complainant has failed to respond to the request within
15 days of its receipt or the complainant's response does not address
the agency's request, provided that the request included a notice of the
proposed dismissal. The regulation further provides that, instead of
dismissing for failure to cooperate, the complaint may be adjudicated
if sufficient information for that purpose is available.
Under the circumstances in this case, we find that the agency's dismissal
of allegation (2) was improper. The record indicates that on May 18,
1998, appellant received a memorandum from the agency requesting that
he furnish an affidavit and indicating that failure to do so within 15
days would result in dismissal of his complaint. According to the agency,
appellant failed to furnish his affidavit within the requisite time frame,
and therefore, his complaint should be dismissed for failure to cooperate.
We note, however, that the agency failed to show why appellant's
affidavit was necessary for the further processing of allegation (2).
The agency has not claimed that allegation (2) was vague, and the agency
found that there was sufficient information in the record to be able
to define the allegation and accept it for investigation. Moreover,
we note that allegation (2), along with the EEO Counselor's Report,
addressed the incident of alleged discrimination, with reference to
the responsible agency official by name, the bases on which he alleged
discrimination, and the corrective action sought. The Commission has held
that as a general rule, an agency should not dismiss a complaint when it
has sufficient information on which to base an adjudication. See Ross
v. United States Postal Service, EEOC Request No. 05900693 (August 17,
1990); Brinson v. United States Postal Service, EEOC Request No. 05900193
(April 12, 1990). It is only in cases where the complainant has engaged
in delay or contumacious conduct and the record is insufficient to permit
adjudication that the Commission has allowed a complaint to be dismissed
for failure to cooperate. See Kroeten v. U.S. Postal Service, EEOC
Request No. 05940451 (December 22, 1994); Raz v. United States Postal
Service, EEOC Request No. 05890177 (June 14, 1989). Therefore, under
the circumstances, we find that the agency's dismissal of appellant's
complaint for failure to cooperate was improper.
However, the record contains no information supporting appellant's claim
for compensatory damages, despite the fact that the May 15, 1998 letter
from the agency requested such information. Based on the foregoing, on
remand, although the agency shall continue the processing of allegation
(2), we find that appellant will not be entitled to compensatory damages,
as he failed to respond with information supporting such damages.
Appellant asserts on appeal that he suffers from a chronic somatoform
disorder which affects his ability to meet deadlines. However,
the restriction evaluation sheet he submitted fails to indicate that
appellant's condition was such that he was unable to meet deadlines.<2>
We have consistently held, in cases involving physical or mental health
difficulties, that an extension is warranted only where an individual
is so incapacitated by his condition that he is unable to meet the
regulatory time limits. See Davis v. United States Postal Service,
EEOC Request No. 05980475 (August 6, 1998); Crear v. United States
Postal Service, EEOC Request No. 05920700 (October 29, 1992); Weinberger
v. Department of the Army, EEOC Request No. 05920040 (February 21,
1992); Hickman v. Department of the Navy, EEOC Request No. 05910707
(September 30, 1991); Johnson v. Department of Health and Human Services,
EEOC Request No. 05900873 (October 5, 1990); and Zelmer v. United States
Postal Service, EEOC Request No. 05890164 (March 8, 1989). Similarly, we
find that this case, where appellant contends that his mental disability
prevented him from meeting the deadline for returning his answers to the
agency's request for information, is sufficiently analogous to require
similar proof of incapacitation. As the record fails to disclose any
such proof, we find that appellant may not rely on this justification
to allow him to provide proof of compensatory damages as requested in
the agency's May 15, 1998 request for information.
Accordingly, the agency's decision to dismiss allegation (1) is AFFIRMED
for the reasons set forth herein. The agency's decision to dismiss
allegation (2) is hereby REVERSED. Allegation (2) is REMANDED to the
agency for further processing in accordance with this decision and the
Order below.
ORDER (E1092)
The agency is ORDERED to process the remanded allegation in accordance
with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant
that it has received the remanded allegation within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue to
appellant a copy of the investigative file and also shall notify appellant
of the appropriate rights within one hundred fifty (150) calendar days
of the date this decision becomes final, unless the matter is otherwise
resolved prior to that time. If the appellant requests a final decision
without a hearing, the agency shall issue a final decision within sixty
(60) days of receipt of appellant's request.
A copy of the agency's letter of acknowledgment to appellant and a copy
of the notice that transmits the investigative file and notice of rights
must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
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 appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503(a). The appellant 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. ��1614.408, 1614.409, and 1614.503(g). Alternatively,
the appellant 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. ��1614.408 and 1614.409. 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) (Supp. V 1993). If the
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (T0993)
This decision affirms the agency's final decision in part, but it also
requires the agency to continue its administrative processing of a
portion of your complaint. You have the right to file a civil action
in an appropriate United States District Court on both that portion of
your complaint which the Commission has affirmed AND that portion of the
complaint which has been remanded for continued administrative processing.
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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. 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 (Z1092)
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:
August 31, 1999
____________________________
DATE Carlton M. Hadden, Acting Director
1Although the Commission has held that the proper forum for contesting the
outcome of an OWCP claim is with the Department of Labor, the Commission
has withheld jurisdiction for allegations that the agency delayed
processing a claim because of discriminatory animus. See Foster v. U.S.
Postal Service, EEOC Request No. 05950693 (May 16, 1996). Consequently,
dismissal of allegation (2) for failure to state a claim is not justified.
2The Commission notes that the although physician marked "yes" on the
question regarding whether appellant's interpersonal relations are
effected because of a neuropsychiatric condition, in the space provided
for him to describe such affectations (of which "meet deadlines" was
provided as an example), the physician merely noted, "requires psychiatric
evaluation."