05A01285_r
09-26-2002
Lucille A. Federico, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Lucille A. Federico v. United States Postal Service
05A01285
September 26, 2002
.
Lucille A. Federico,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Request No. 05A01285
Appeal No. 01A03217
Agency No. 1E-853-0067-99
DECISION ON REQUEST FOR RECONSIDERATION
On September 11, 2000, Lucille A. Federico (complainant) timely initiated
a request to the Equal Employment Opportunity Commission (the Commission)
to reconsider the decision in Lucille A. Federico v. United States Postal
Service, EEOC Appeal No. 01A03217 (August 22, 2000). EEOC regulations
provide that the Commissioners may, in their discretion, reconsider
any previous Commission decision. 29 C.F.R. � 1614.405(b). The party
requesting reconsideration must submit written argument or evidence
which tends to establish one or more of the following two criteria:
the appellate decision involved a clearly erroneous interpretation of
material fact or law; or the decision will have a substantial impact
on the policies, practices or operations of the agency. Id. For the
reasons set forth herein, complainant's request is granted.
In the previous decision, the Commission dismissed complainant's appeal
as untimely filed. The Commission previously found that the agency's
decision was dated January 5, 2000, and was received by complainant on
January 7, 2000. The Commission previously found that the appeal was
filed beyond the 30-day time limit set forth in 29 C.F.R. � 1614.402(a).
On request for reconsideration, complainant asserts that she appealed
to the Commission on February 7, 2000, or thirty-one days after she
received the agency's final decision. Complainant also asserts that
the thirtieth day after she received the agency's decision was a Sunday.
Based on this evidence, complainant contends that her appeal was timely.
Upon review, the Commission finds that its prior decision involved a
clearly erroneous interpretation of law. The Commission find that the
thirtieth day after complainant received the agency's final decision was
a Sunday, thus allowing her to timely submit her appeal thirty-one days
after receipt on February 7, 2000, a Monday. See 29 C.F.R. � 1614.604(d)
(extending time limit to include the next business day after a Sunday).
Therefore, complainant's appeal was timely and we grant complainant's
request for reconsideration. The Commission will now address whether the
agency's January 5, 2000 decision dismissing the complaint was proper.
In a complaint dated December 1, 1999, complainant alleged that she was
discriminated against on the bases of race, color, national origin, sex,
and disability when:
On July 7, 1999, complainant received the investigative file for a prior
EEO claim and discovered that her supervisor had made false statements
to a Department of Labor official concerning her Office of Workers'
Compensation Programs (OWCP) claim; and
After receiving her injury compensation file on July 22, 1999,
complainant became aware that on December 28, 1997, her supervisor made
a motion to remove her from the agency.
In its January 5, 2000 decision, the agency dismissed claim (1) for
failure to state a claim and claim (2) as a proposed action. The agency
specifically found in the dismissal that claim (1) was a collateral
attack on the OWCP process, and that complainant had not been aggrieved
by the alleged agency action in claim (2).
The Commission finds that the agency properly dismissed complainant's
complaint. With regard to claim (1), the Commission has 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). The record shows that complainant's claim
is directly related to the processing of her OWCP claim. The proper forum
for complainant to raise her challenges to actions which occurred during
the OWCP process was during that process itself.<1> It is inappropriate
to now attempt to use the EEO process to collaterally attack actions
which occurred related to complainant's OWCP claim. Consequently,
the agency correctly dismissed claim (1) for failure to state a claim
pursuant to 29 C.F.R. � 1614.107(a)(1).
Concerning claim (2), the regulation set forth at 29 C.F.R. �
1614.107(a)(5) provides, in part, that the agency shall dismiss a
complaint that alleges that a proposal to take a personnel action, or
other preliminary step to taking a personnel action, is discriminatory.
Here, complainant has failed to claim or show that her supervisor's
alleged attempt to remove her resulted in any action against her
or amounted to any more than a proposal to take a personnel action.
Furthermore, complainant has not shown how she was aggrieved by the
alleged proposed action. As such, we find that claim (2) was properly
dismissed by the agency pursuant to � 1614.107(a)(5).
CONCLUSION
After a review of complainant's request for reconsideration, the
previous decision, and the entire record, the Commission finds that
complainant's request meets the criteria of 29 C.F.R. � 1614.405(b), and
it is the decision of the Commission to GRANT complainant's request.
The Commission's dismissal in Appeal No. 01A03217 is REVERSED.
Upon review of the agency's dismissal of complainant's complaint, the
Commission AFFIRMS the agency's final decision. Because the Commission
has not previously addressed the agency's final decision, the parties
may file a request to reconsider the Commission's decision to affirm
the agency's decision.
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:
______________________________
Frances M. Hart
Executive Officer
Executive Secretariat
September 26, 2002
_________________
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
______________________________
1We note that complainant states in her appeal to the Commission that an
oral hearing was held concerning her OWCP claim, and that she �prevailed
in her appeal.�