01984501_r
03-19-1999
Isidor Meza, Jr., Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Isidor Meza, Jr., )
Appellant, )
)
)
v. ) Appeal No. 01984501
) Agency No. 4-G-770-0644-97
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
______________________________)
DECISION
Appellant filed an appeal with this Commission from a final agency
decision ("FAD") concerning his complaints of unlawful employment
discrimination in violation of Title VII of the Civil Rights Act of
1964, as amended, 42 U.S.C. �2000e et seq., the Age Discrimination in
Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �621 et seq., and
�501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. �791 et
seq.. The final agency decision was dated March 25, 1998. The appeal,
postmarked April 23, 1998, is timely (see, 29 C.F.R. �1614.402(a)),
and is accepted in accordance with EEOC Order No. 960, as amended.
The record indicates that on April 29, 1997, appellant initiated contact
with an EEO Counselor (agency complaint number 4-G-770-0645-97), and
on July 23, 1997 he initiated contact on a separate complaint (agency
complaint no. 4-G-770-0644-97). On August 24, 1997, appellant filed
a formal complaint on agency number 4-G-770-0644-97. On September 2,
1998, appellant filed a formal complaint on agency number 4-G-0645-97.
In his complaints, appellant alleged that he was the victim of unlawful
employment discrimination on the bases of race (Caucasian), color (Brown),
national origin (Hispanic), age (47), physical disability (back/spine
injuries), and mental disability (post traumatic stress disorder) when:
(1) On April 14, 1997, appellant's supervisor sent a memo to the Office
of Worker's Compensation (OWCP) to add that he rode a wagon in a rodeo,
which violated the Privacy Act;
(2) On June 13, 1997, appellant received a Letter of Warning for
Unsatisfactory Safety Performance;
(3) On April 16, April 23, and May 7, 1997, appellant's requests for
copies of documents and/or investigative reports were denied;
(4) On April 15, 1997, appellant was not compensated for working until
9:30 p.m.;
(5) Appellant's OWCP claims for March 25, April 16, and 30, 1997 were
denied or not answered;
(6) On April 18, 22, and 30, and June 9, 1997, appellant's requests for
transfer were either ignored or denied;
(7) On April 29, 1997, appellant's work start-time was changed from 4:00
a.m. to 10:00 a.m.; and
(8) On May 21, 1997, appellant's supervisor refused to see him in private.
The agency issued two final decisions on January 28, 1998, one for
each agency number. Appellant appealed the FAD of agency number
4-G-770-0645-97 on February 25, 1998, EEOC Appeal No. 01982774.
By letter dated March 4, 1998, the agency consolidated agency complaint
numbers 4-G-770-0644-97 and 4-G-770-0645-97, under agency number
4-G-770-0644-97. On March 25, 1998, the agency issued a new FAD on the
consolidated agency number 4-G-770-0644-97, which superceded its prior
decisions. In this March 25, 1998 FAD, the agency accepted allegations
(2), (4), (6), and (7) for investigation, and dismissed the remaining
allegations for failure to state a claim pursuant to EEOC Regulation 29
C.F.R. �1614.107(a).
On April 23, 1998, appellant filed the present appeal for the March 25,
1998 FAD, EEOC Appeal No. 01984501. Appellant notes that the denial of
his OWCP claim was reversed, and compensation was granted despite his
supervisor's efforts to block his claim. With regard to allegation (3),
appellant argues that he should be entitled to copies of incident reports
and disciplinary actions regarding the March 25, 1997 altercation that
resulted in his injury and subsequent OWCP claim. Appellant claims he
was denied due process, and treated without dignity and respect when he
was not allowed to see these documents.
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 (Apr. 21, 1994).
In allegation (1), appellant alleged that his supervisor erroneously
informed the OWCP that he rode a wagon in a rodeo in an attempt to block
his claim. The Commission has held that issues concerning an employee's
OWCP claim are not appealable to the Commission except in limited
circumstances. Hogan v. Department of the Army, EEOC Request No. 05940407
(September 29, 1994)(reviewing an allegation that agency officials
provided misleading statements to OWCP would require the Commission to
essentially determine what workers' compensation benefits the complainant
would likely have received). In allegation (5), appellant alleged that
his OWCP claims were denied or not answered. The matter at issue herein
concerns the general administration of workers' compensation benefits,
and does not relate to an employment policy or practice. The Commission
notes that it has no jurisdiction to overturn OWCP's determinations on
individual claims since such would constitute an improper collateral
attack. See Fisher v. Department of Defense, EEOC Request No. 05931059
(July 15, 1994). Such attacks do not fall under the purview of the EEO
process, and therefore fail to state a claim. Id. Furthermore, we note
that appellant indicates that the OWCP ultimately approved his claim.
Accordingly, the agency's decision to dismiss allegations (1) and (5)
for failure to state a claim was proper and is AFFIRMED.
Furthermore, in allegation (1), appellant alleges that his rights were
violated under the Privacy Act. The Commission has consistently held
that an alleged violation of the Privacy Act is outside the purview
of the EEO process. See Valle v. United States Postal Service,
EEOC Request No. 05960585 (Sept. 6, 1997) (citing Osborne v. United
States Postal Service, EEOC Request No. 05950654 (Feb. 15, 1996); Bucci
v. Department of Education, EEOC Request No. 05890289 (Apr. 12, 1989).
When an employee believes that an agency has violated his rights under
the Privacy Act, the proper remedy is provided under that legislation.
See Moore v. United States Postal Service, EEOC Appeal No. 01943229
(Oct. 27, 1994).
In allegation (3), appellant alleged that his requests for copies of
documents and/or investigative reports regarding his March 25, 1997
accident were denied. An employee is "aggrieved" if he has suffered
direct and personal deprivation at the hands of the employer. See Hobson
M. Department of the Navy, EEOC Request No. 05891133 (Mar. 2, 1990).
Appellant suffered a direct deprivation from the employer when the agency
refused to provide appellant with the requested information. Further,
appellant's allegation falls within the purview of the EEO process,
because appellant alleges that he was mistreated because of several
protected bases. Accordingly, the agency's dismissal of allegation (3)
is REVERSED.
Finally, appellant alleged that his supervisor's refusal to see him in
private was discriminatory. Appellant failed to provide proof of an
�injury in fact.� Appellant has not shown how his supervisor's action
prohibited him from addressing any issue that may affect his employment,
nor how it could otherwise render appellant aggrieved. Therefore,
the dismissal of allegation (8) is AFFIRMED.
CONCLUSION
The agency's final decision to dismiss allegations (1), (5), and
(8) is AFFIRMED. The agency's decision to dismiss allegation (3) is
REVERSED and allegation (3) is hereby REMANDED for further processing
in accordance with 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 your appeal with the
Commission, until such time as the agency issues its final decision
on your complaint. 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:
March 19, 1999 ____________________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations