01a53405
10-06-2005
William A. Mancini, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
William A. Mancini v. United States Postal Service
01A53405
October 6, 2005
.
William A. Mancini,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A53405
Agency No. 1B-041-0002-05
DECISION
Complainant filed an appeal with this Commission from the agency's
decision dated March 10, 2005, 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. and the Age Discrimination in Employment Act of 1967 (ADEA),
as amended, 29 U.S.C. � 621 et seq. In his complaint, complainant alleged
that he was subjected to discrimination on the bases of disability and
age when:
On July 21, 2004, complainant incurred a work-related injury because
he was not allowed to wear cloth gloves. When complainant returned
from the hospital, complainant's supervisor destroyed complainant's
hospital report;
On December 29, 2004, complainant became aware that the agency had delayed
the processing of complainant's Office of Workers' Compensation Programs
(OWCP) form.
The agency dismissed claim (1) pursuant to 29 C.F.R. � 1614.107(a)(2),
for untimely EEO Counselor contact. The agency found, and the record
shows, that complainant contacted the EEO office on December 29, 2004.
The agency dismissed claim (2) pursuant to 29 C.F.R. � 1614.107(a)(1)
for failure to state a claim, finding that claim (2) is an impermissible
collateral attack on another forum, namely the OWCP claims process.
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.
We find that claim (1) is properly dismissed pursuant to 29 C.F.R. �
1614.107(a)(2) for untimely EEO Counselor contact.
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). The proper forum for complainant
to have raised his challenges to actions which occurred during the
processing of his OWCP claim is through the OWCP claims process itself.
It is inappropriate to now attempt to use the EEO process to collaterally
attack the agency's actions in fulfilling its obligations with respect to
complainant's OWCP claim. We therefore find that claim (2) is properly
dismissed pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state
a claim.
We note that even if complainant is claiming he was subjected to
harassment, he has failed to allege any incidents that occurred 45 days
or less prior to his initial EEO Counselor contact apart from his claim
regarding the OWCP process which we find can not be properly part of a
claim of harassment.
We therefore AFFIRM the agency's dismissal of the complaint.
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 (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
October 6, 2005
__________________
Date