Mark G. Zysk v. United States Postal Service
01A54474
December 13, 2005
.
Mark G. Zysk,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A54474
Agency No. 4F-481-0055-05
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision dated May 26, 2005, dismissing his formal EEO complaint 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.
and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. § 791 et seq.
In the instant formal EEO complaint, filed on May 10, 2005, complainant
claimed that he was discriminated against on the bases of disability
and in reprisal for prior EEO activity when:
(1) on February 10, 2005, he received a copy of an improper
disability-related medical inquiry that was made to his doctor;
(2) on February 26, 2005, he was required to provide medical
documentation;
(3) on March 23, 2005, he was harassed, questioned about his protected
activities, subjected to a hostile work environment while on official EEO
duty time, and while he participated in collective bargaining activities,
his official EEO duty time was disallowed;<1>
(4) on March 25, 2005, management conducted a disciplinary investigation
in retaliation for his protected activities and he was subjected to a
hostile work environment;
(5) he was not provided with PS Form 2564-A, Information for
Pre-Complaint Counseling, when requested;
(6) on March 25, 2005, management harassed and deterred his protected
activities while he was on official EEO duty time;
(7) he was followed and spied upon while in the performance of his
letter carrier duties;
(8) the agency continually promotes and creates a hostile work
environment because of his disability; and
(9) he was not afforded the opportunity to participate in REDRESS when
requested as allowed by Management Directive 110 (MD-110).
The agency dismissed the instant complaint pursuant to 29 C.F.R. §
1614.107(a)(1), for failure to state a claim. Specifically, the agency
found that complainant was not an “aggrieved employee” who has suffered
a personal loss or harm with respect to a term, condition or privilege
of employment. The agency found that complainant failed to claim how
he was harmed by the agency’s actions, i.e. no discipline or notice of
termination was issued; and no monetary loss suffered.
Alternatively, the agency dismissed claims (1) – (3) and (6) – (8)
pursuant to 29 C.F.R. § 1614.107(a)(1) for stating the same claims as
raised in a prior EEO complaint.
The record contains a copy of a letter from an agency Injury Compensation
Specialist to a chiropractic facility, dated February 9, 2005. Therein,
the agency noted that the facility is providing medical care for
complainant’s April 12, 2002 on-the-job injury. The agency noted further
that complainant is receiving Workers’ Compensation benefits under the
the Federal Employee’ Compensation Act (FECA); that federal employees
receiving benefits pursuant to FECA are statutorily required to return
to either former employment or alternative employment, if available;
and that the agency is required to demonstrate the availability of
suitable work. The agency indicated that in keeping with its obligation,
it was requesting that the chiropractic facility complete an enclosed
work restriction letter, and to note physical limitations imposed by
complainant’s life activities, both on and off the job.
On appeal, complainant, through his representative, contends that
the agency’s “repeated mis-statement of his claims and it’s repeated
frivolous dismissal of his allegations, which clearly states claims,
to be an improper abuse of the EEO process, a blatant disregard of its
obligations to investigate allegations of discrimination and retaliation,
and unlawful interference with [complainant’s] rights to prepare and
present his legitimate EEO claims.” Complainant further requests that the
Commission amend his instant complaint by including the claim regarding
unlawful interference with his rights.
The regulation set forth at 29 C.F.R. § 1614.107(a)(1) provides, in
relevant part, that an agency shall dismiss a complaint 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,
.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 (April 21, 1994).
Upon review, we find that complainant has not alleged a personal loss
or harm regarding a term, condition, or privilege of his employment.
Regarding claims (1) and (2), the record reflects that on February 9,
2005, the Office of Worker’s Compensation Office (OWCP) sent a letter
to complainant’s chiropractic facility, requesting it to fill out an
enclosed work restriction letter concerning complainant’s job-related
injury that he sustained on April 12, 2002. We further note that
the record reflects that the OWCP requested that complainant provide
medical documentation concerning his job-related injury. We find that
the actions identified by complainant clearly fall within the forum of
the OWCP process. Therefore, we find that the agency properly dismissed
claims (1) and (2) as these claims constitute a collateral attack on
the OWCP process.
Regarding claim (7), we note that while complainant claimed that he was
followed and spied upon while in the performance of his letter carrier
duties, he has not alleged a personal loss or harm regarding a term,
condition, or privilege of his employment
Regarding claims (5) and (9), we note that complainant contends that he
was discriminated against when he was not provided with PS Form 2564-A,
Information for Pre-Complaint Counseling, when requested; and that he was
not afforded the opportunity to participate in REDRESS when requested
as allowed by MD-110. We note that the record reflects that while
complainant was not denied the right to a PS Form 2564-A, he was advised
to address all of his claims on the form he had already received; and
that he was not denied REDRESS because he had already attended mediation
on the claims filed prior to the date of the mediation.
Regarding claim (8), we find that complainant has not demonstrated that
he suffered an individual harm as a result of the action complained
of herein. Rather, complainant’s claim is a generalized grievance
concerning the agency promoting and creating a hostile work environment
because of his disability.
Regarding that portion of claim (3) relating to the denial of official
EEO duty time to participate in collective bargaining activities,
the Commission determines that this matter is more appropriately
handled through the collective bargaining process. The issue raised
by complainant does not concern a term, condition, or privilege of
complainant’s employment over which the Commission will exercise
jurisdiction.
Finally, with respect to claims (4) and (6), as well as that portion of
claim (3) that is unrelated to a claim of official time denial (i.e.,
that he was harassed and questioned about his protected activities) we
find complainant fails to present adequate information to show that
he was subjected to a hostile work environment that is sufficiently
severe or pervasive, as to constitute an actionable claim of harassment.
See Cobb v. Department of the Treasury, EEOC Request No. 05970077 (March
13, 1997).
Accordingly, we AFFIRM the agency’s decision to dismiss the instant
complaint for failure to state a claim.<2>
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
December 13, 2005
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant’s representative
(if applicable), and the agency on:
__________________
Date
______________________________
Equal Opportunity Assistant 1Relevant to this claim, the record contains
evidence reflecting that complainant had pursued the grievance process
on the issue that on March 23, 2005, complainant was making a copy of
an EEO complaint that he had filed. While at the copying machine, an
agency carrier asked complainant, a former union official, a question
concerning the National Agreement. A Station Manager, standing nearby,
purportedly informed complainant that it was none of his concern, as he
was no longer a union representative.
2 Because we affirm the agency’s dismissal of the entire complaint for
the reasons stated herein, we find it unnecessary to address alternative
dismissal grounds.
