01992074
02-10-2000
Thomas E. Cleland, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Thomas E. Cleland, )
Complainant, )
)
v. ) Appeal No. 01992074
) Agency No. 98-0156
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
____________________________________)
DECISION
On January 17, 1999, complainant filed a timely appeal with this
Commission from a final agency decision (FAD) received by him on
December 18, 1998, pertaining to his complaint 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. and Section 501 of the
Rehabilitation Act of 1973, as amended, 29 U.S.C. � 791 et seq.<1> In his
complaint, complainant alleged that he was subjected to discrimination
on the bases of physical disability, mental disability, and in reprisal
for prior EEO activity when on or about July 17, 1997, complainant
discovered that in the processing of his claim with the Office of
Workers' Compensation (OWCP), the agency provided false and/or incomplete
information in an untimely manner. Further, complainant alleged that the
supervisor who provided the information had no knowledge of complainant,
and did not sign the forms as required.
In its FAD, the agency dismissed the complaint for failure to state a
claim.
On appeal, complainant argues that the agency harassed him when it
refused to assist him in the processing of his OWCP claim as promised.
In response, the agency contends that complainant should have raised
his concerns within the OWCP forum.
EEOC Regulations require the dismissal of complaints that fail to state
a claim. See 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified as 29
C.F.R. � 1614.107(a)(1)) The Commission has held that a collateral attack
to the OWCP process fails to state a claim. See Conley v. Navy, EEOC
Request No. 05970402 (Feb. 11, 1999); Agustin v. Department of Labor,
EEOC Request No. 05960127 (Dec. 19, 1996) (direct attack of manner in
which OWCP personnel processed an injury claim is a collateral attack).
An attack of the merits of an OWCP claim, or of the agency's action in
representing its interests in the OWCP forum, even by the submission
of allegedly false information, does not state a claim. See Pirozi
v. Department of the Navy, EEOC Request No. 05970146 (Oct. 23, 1998);
Ward v. United States Parcel Service, EEOC Request No. 05980036 (Mar. 19,
1998).
In the present case, complainant has lodged a collateral attack against
the OWCP process, and against the agency's actions in representing its
interests. Accordingly, the agency's dismissal for failure to state a
claim is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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 (S1199)
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:
February 10, 2000
____________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date Equal Employment Assistant1On November 9, 1999, revised
regulations governing the EEOC's federal sector complaint process
went into effect. These regulations apply to all federal sector
EEO complaints pending at any stage in the administrative process.
Consequently, the Commission will apply the revised regulations found
at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.