EEOC Appeal No. 0120142586
12-30-2014
Complainant v. U.S. Postal Serv.
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Great Lakes Area),
Agency.
Appeal No. 0120142586
Agency No. 4J-481-0081-14
DECISION
Complainant filed an appeal with this Commission from the Agency's decision, dated May 28, 2014, 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. Complainant's appeal appears to be untimely filed, but the record is unclear as to the date that Complainant received the Agency's decision. We, therefore, accept the appeal.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Letter Carrier at the Agency's Ann Arbor Post Office facility in Ann Arbor, Michigan.
On May 12, 2014, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the basis of disability ("Knees"), when Complainant was not granted all of the 152 hours of Continuation of Pay (COP) he requested for the dates March 28, 2014 through April 11, 2014.
The pertinent record shows that Complainant applied to the Department of Labor's Office of Workers' Compensation Programs (OWCP) for COP for an on-the-job injury on March 8, 2014. Complainant alleged that he did not receive all of the 152 hours of pay which he claims is due to him. The award of COP is determined by the Department of Labor's OWCP.
The record does not show any Agency action by the named employer that denied Complainant COP.
On March 10, 2014, Complainant was seen by a doctor and Complainant received the doctor's note on March 12, 2014. Management informed Complainant's representative that further medical documentation was required. Management received Complainant's documentation on March 25, 2014. On April 3, 2014, the Agency's Health and Human Resources Department approved Complainant's submission. In addition, a pay correction was initiated. Complainant was also given an advance for one of the pay periods. The paperwork for an earlier disputed pay period was eventually processed.
The Agency dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim. The Agency reasoned that Complainant was using the EEO complaint process to lodge a collateral attack on another forum's proceeding. The Agency concluded that the proper forum for Complainant to raise any COP concerns was through the OWCP. The Agency dismissed the complaint.
This appeal followed.
ANALYSIS AND FINDINGS
Complainant did not submit a brief in support of his appeal.
The Commission has held that an employee cannot use the EEO complaint process to lodge a collateral attack on another proceeding. See Wills v. Dep't of Def., EEOC Request No. 05970596 (July 30, 1998); Kleinman v. U.S. Postal Serv., EEOC Request No. 05940585 (Sept. 22, 1994); Lingad v. U.S. Postal Serv., EEOC Request No. 05930106 (June 25, 1993). The proper forum for Complainant to have raised his challenges to receiving less than he anticipated in COP was through the OWCP proceeding itself. It is inappropriate to now attempt to use the EEO process to collaterally attack actions which occurred during the DOL OWCP process. Moreover, Complainant does not allege that any actions by the Postal Service caused him to receive a lower COP award.
The Commission finds that the complaint fails to state a claim under the EEOC regulations because Complainant failed to show that he suffered harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. See Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (April 21, 1994).
CONCLUSION
Accordingly, we AFFIRM the Agency's final decision dismissing Complainant's complaint.
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 tends 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
December 30, 2014
__________________
Date
2
0120142586
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
4
0120142586