0120114116
02-14-2012
Troy J. Bouchard, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Northeast Area), Agency.
Troy J. Bouchard,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Northeast Area),
Agency.
Appeal No. 0120114116
Agency No. 4B-040-0023-11
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity
Commission (EEOC or Commission) from the Agency's decision dated August 4,
2011, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Letter Carrier at the Agency’s Lewiston Post Office in Lewiston,
Maine. On July 15, 2011, he filed a formal complaint alleging that
the Agency discriminated against him based on disability (association
with stepson who can’t walk and uses a wheelchair). He alleged this
discrimination occurred when the Agency wrote the Office of Workers’
Compensation Programs (OWCP) challenging his claim that he injured
his back on the job by falsely writing he had no ramps in or out of
his home so he lifts his stepson in and out of the home and in and out
of his wheelchair while at home. The Agency wrote that it believed
it was more likely that Complainant’s activities at home caused
his injury. In response OWCP wrote Complainant in April 2011 that the
Agency challenged his claim on the grounds that his back condition was
unrelated to his employment since he lifts his stepson in and out of a
wheelchair in and out of his home, and asked him to explain.
The Agency dismissed the complaint for failure to state a claim.
It reasoned that the complaint was a collateral attack against the
OWCP process.
On appeal, Complainant cites appellate Commission cases from the
1990s for the proposition that where the complaint is about the agency
delaying submitting a claim to OWCP, interfering with or controverting the
processing it, or releasing information to OWCP without proper authority,
the complaint is not an impermissible collateral attack on the OWCP
process. Complainant also cites to a more recent EEOC Administrative
Judge’s decision which found discrimination when the Agency sent
repeated correspondence to OWCP questioning the relationship between the
complainant’s requests that she perform certain mail handling duties
in a non-standard fashion and her OWCP approved emotional injury.
In opposition to the appeal, the Agency urges the Commission to affirm
its dismissal.
ANALYSIS AND FINDINGS
It is well settled that an agency has an obligation to controvert an
employee’s workers’ compensation claim when there is a dispute as
to an employee’s entitlement. Hall v. Department of the Treasury,
EEOC Appeal No. 01945595 (Feb. 23, 1995). We have previously held that
where a complainant claims that the agency discriminated in a manner
pertaining to the merits of the workers’ compensation claim, for
example, by submitting paperwork containing allegedly false information,
then the complaint does not state an EEO claim. Olson v. United States
Postal Service, EEOC Appeal No. 01A44425 (April 28, 2005). In support
of this, Olson cited Hogan v. Department of the Army, EEOC Request
No. 05940407 (Sept. 29, 1994) (reviewing a claim that agency officials
provided misleading statements to OWCP would require the Commission
to essentially determine what workers’ compensation benefits the
complainant would have likely received. Such a claim is not allowed
except in limited circumstances). Hall and Hogan are still frequently
cited by the Commission to support their propositions.
The case which Complainant cited to support his argument that
Agency discriminatory actions which interfere with or controvert
the processing of an OWCP claim state a claim regarded an agency not
giving the professional assistance necessary to get the complainant’s
claims accepted by OWCP. This case has repeatedly been distinguished
in Commission decisions, has not been cited by the Commission in many
years, and is not like the situation in Complainant’s case. On appeal,
Complainant also cited Lau v. National Credit Union Administration,
EEOC Request No. 05950037 (March 18, 1996). A close reading of this
decision shows it is in line with Hall and Hogan. In Lau, an agency
attorney allegedly transmitted information to OWCP resulting in the
issuance of a notice proposing the termination of workers’ compensation
benefits. The Commission held that if the complainant was alleging
that the agency’s attorney was acting within his proper authority,
but the information itself was false or misleading, the allegation
about the matter would fail to state a claim because it would merely
serve to attack the manner in which the agency represented its position
in the OWCP forum. The Commission still frequently cites Lau for the
proposition that allegations that an agency’s submissions to OWCP were
false or misleading fail to state a claim in the EEO process.
Here, an Agency Health & Resource Management Specialist sent a letter
to OWCP challenging the merits of Complainant’s OWCP claim. While
Complainant alleges that the letter was false and discriminatory, based
on the above case law, we find that his complaint fails to state a claim.
Complainant also cited a decision by an EEOC Administrative Judge. We
give this decision no weight. It was not published, has no precedential
value, and the issue of failure to state a claim was not addressed.
The FAD is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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
77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
February 14, 2012
__________________
Date
2
0120114116
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120114116