01A13461_r
08-06-2002
Daniel T. Barker, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Daniel T. Barker v. United States Postal Service
01A13461
August 6, 2002
.
Daniel T. Barker,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A13461
Agency No. 4A-117-0134-99
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated April 3, 2001, dismissing complainant's consolidated
complaints 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., 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.<1>
In his complaints, complainant claimed that he was discriminated against
on the bases of sex (male), age (D.O.B. December 18, 1947), disability
(injury-on-duty), and in retaliation for prior EEO activity when:
On August 2, 1999, complainant received a Terminal Leave Check showing
that approximately $2,175.00 had been collected for an alleged debt that
complainant owed the agency;
On August 24, 1999, complainant was informed that the Office of Workers'
Compensation Programs (OWCP) would not issue a decision concerning his
November 1997 injury because it was still being developed by the OWCP,
New York Office;
On December 15, 1999, complainant received a letter from the Employees'
Compensation Appeals Board (ECAB), indicating that they just received
his case file concerning his second injury, which complainant believes
to be an attempt to delay the processing of his injury compensation
complaint; and
Due to the improper processing of complainant's OWCP claims by the
Department of Labor, complainant was forced into disability retirement.
The agency dismissed claim 1 and claim 4 for untimely EEO Counselor
contact, pursuant to 29 C.F.R. � 1614.107(a)(2). The agency dismissed
claim 2 and claim 3 for failure to state a claim, pursuant to 29
C.F.R. � 1614.107(a)(1). We find that complainant's complaints were
properly dismissed by the agency; however, we find that claim 4 is
more appropriately dismissed for failure to state a claim, pursuant to
29 C.F.R. � 1614.107(a)(1), than for untimely EEO Counselor contact,
pursuant to 29 C.F.R. � 1614.107(a)(2).
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires complaints of
discrimination to be brought to the attention of the EEO Counselor within
forty-five (45) days of the date of the claimed discriminatory matter,
or, in the case of a personnel action, within forty-five (45) days of
the effective date of the action. The Commission's regulations, however,
provide that the time limit will be extended when the complainant shows
that he or she was not notified of the time limits and was not otherwise
aware of them, that he or she did not know and reasonably should not
have known that the discriminatory matter or personnel action occurred,
that despite due diligence he or she was prevented by circumstances
beyond his or her control from contacting the counselor within the time
limits, or for other reasons considered sufficient by the agency or the
Commission. See 29 C.F.R. � 1614.105(a)(2).
Regarding claim 1, the Commission finds that complainant did not initiate
contact with an EEO Counselor within the forty-five (45) day limitation
period. Complainant should have reasonably suspected discrimination
as early as January 27, 1997, which was more than 45 days before his
initial contact with an EEO Counselor on September 8, 1999. On January
27, 1997, complainant wrote a letter to the agency's finance department
specifically asking them to explain why he owed the agency $2175.05.
Complainant sent the Director of Finance a follow-up letter on December
12, 1997 regarding this overpayment. Complainant has failed to submit
adequate justification, pursuant to 29 C.F.R. � 1614.105(a)(2) for
extending the time limitation for EEO Counselor contact beyond forty-five
(45) calendar days. Therefore, claim 1 was properly dismissed by the
agency for untimely EEO Counselor contact.
Additionally, we find that claims 2, 3, and 4 are properly dismissed
for failure to state a claim. The Commission has held that an employee
cannot use the EEO complaint process to lodge a collateral attack on
another forum's proceeding. See Wills v. Department of Defense, EEOC
Request No. 05970596 (July 30, 1998); Kleinman v. U.S. Postal Service,
EEOC Request No. 05940585 (September 22, 1994); Lingad v. U.S. Postal
Service, EEOC Request No. 05930106 (June 24, 1993). The proper forum
for complainant to have raised his challenges to actions that
occurred during the processing of his OWCP and ECAB claims 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 workers' compensation claims. In his statement
on appeal, complainant requests that claim 2 and claim 3 be considered
together; however, even when considered together, we find that the agency
properly dismissed these claims pursuant to 29 C.F.R. � 1614.107(a)(1).
Since claims 2, 3, and 4 are collateral attacks another forum's
proceedings, complainant fails to state a claim.
Therefore, the agency's decision to dismiss complainant's consolidated
complaints is AFFIRMED.
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
August 6, 2002
__________________
Date 1Agency Number 4A-117-0134-99 represents
a consolidation of Agency Number 4A-117-0134-99 and Agency Number
4A-117-0035-00.