0120101820
08-05-2010
Alfred B. Charles, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Northeast Area), Agency.
Alfred B. Charles,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Northeast Area),
Agency.
Appeal No. 0120101820
Agency No. 1B111000110
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated February 22, 2010, dismissing his 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., 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.
ISSUE PRESENTED
Whether the Agency properly dismissed Complainant's complaint on the ground that he failed to state a claim.
BACKGROUND
At all times pertinent to the alleged discriminatory action, Complainant worked as an Electronic Technician at the Agency's Queens Processing and Distribution Center (P&CD) in Flushing, New York. In his complaint dated January 21, 2010, Complainant alleged that the Agency subjected him to discrimination on the bases of race (African American), sex (male), color (brown), national origin (Guyana), disability (neck, back right arm), age (55) and in reprisal for prior EEO activity when, on October 30, 2009, his Office of Workers Compensation Programs (OWCP) claim was not processed.
In its final decision, the Agency found that the Office of Workers Compensation (OWCP) was the proper forum for Complainant's complaint. The Agency noted that Complainant could not use the EEO process to seek collateral enforcement of a process governed by the Department of Labor. Accordingly, the Agency dismissed Complainant's claim for failure state a claim in accordance with 29 C.F.R. 1614.107(a)(1).
CONTENTIONS ON APPEAL
Complainant contends that the OWCP did not process his CA-7 form because the Agency failed to properly complete said form.
The Agency contends that Complainant failed to present any new evidence or argument that warrants disturbing its final decision. The Agency requests that the Commission affirm its final decision.
FINDINGS AND ANALYSIS
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 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).
Here, Complainant contends that the Agency discriminated against him when it failed to properly complete the CA-7 form. The Commission agrees with the Agency that the claim constitutes an impermissible collateral attack on the OWCP process. We have held that an employee cannot use the EEO complaint process to lodge a collateral attack on another proceeding. See Wills v. Department of Defense, EEOC Request No. 05970596 (July 30, 1998); Kleinman v. United States Postal Service, EEOC Request No. 05940585 (September 22, 1994); Lingad v. United States Postal Service, EEOC Request No. 05930106 (June 25, 1993). The proper forum for complainant to have raised his challenges to actions which occurred during the OWCP process. Lau v. National Credit Union, EEOC Request No. 05950037 (March 18, 1996)(allegations that the agency's submissions to OWCP were false or misleading fail to state a claim in the EEO process).
CONCLUSION
Accordingly, the Agency's decision to dismiss Complainant's complaint was proper and is hereby 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
____8/5/10______________
Date
2
0120101820
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120101820