05a01065
08-16-2002
_________________, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
_________________ v. United States Postal Service
05A01065
08-16-02
.
_________________,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Request No. 05A01065
Appeal No. 01A03298
DECISION ON REQUEST FOR RECONSIDERATION
On July 27, 2000, _________________ (hereinafter referred to as
complainant) initiated a request to the Equal Employment Opportunity
Commission (Commission) to reconsider the decision in _________________
v. William J. Henderson, Postmaster General, United States Postal Service,
EEOC Appeal No. 01A03298 (June 27, 2000).<1> EEOC Regulations provide
that the Commissioners may, in their discretion, reconsider any previous
decision where the party demonstrates that: (1). the previous decision
involved a clearly erroneous interpretation of material fact or law;
or (2). the decision will have a substantial impact on the policies,
practices, or operation of the agency. 29 C.F.R. �1614.405(b). For the
reasons that follow, the Commission DENIES complainant's request.
ISSUE PRESENTED
The issue herein is whether the previous decision properly affirmed
the agency's dismissal of the underlying complaint for failure to state
a claim.
BACKGROUND
Complainant filed a formal EEO complaint in February 2000, alleging that
she was discriminated against on the bases of her race (black), sex
(female), and disability (epicondylitis) when she learned in December
1999, that her supervisor did not submit her workers' compensation
papers in a timely manner. The agency dismissed the complaint for
failure to state a claim. On appeal, the previous decision affirmed
the dismissal, characterizing the issue as a collateral attack on the
workers' compensation process.
In her request for reconsideration, complainant asserted that the agency
consolidated the complaint herein with a subsequent complaint which it
had accepted.<2> The agency countered that it consolidated the actions
solely for purposes of EEO counseling.
ANALYSIS AND FINDINGS
As discussed above, the Commission may, in its discretion, reconsider
any previous decision when the party requesting reconsideration submits
written argument or evidence which tends to establish that any of the
criteria of 29 C.F.R. � 1614.405(b) is met. After a careful review
of the record herein, the Commission finds that complainant's request
does not meet the criteria of 29 C.F.R. � 1614.405(b)(1). Therefore,
it is the decision of the Commission to deny complainant's request.
The EEOC Regulations provide for the dismissal of a complaint which
fails to state a claim within the meaning of 29 C.F.R. � 1614.103.
29 C.F.R. � 1614.107(a). 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. 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. Riden v. Department of the Treasury, EEOC
Request No. 05970314 (October 2, 1998).
In the case at hand, the issue concerns the processing of complainant's
claim with the Office of Workers' Compensation Programs (OWCP).
Upon review of the record, we find that the underlying claim constitutes
a collateral attack on the OWCP decision making process, and, as such,
fails to state a claim. See Reloj v. Department of Veterans Affairs,
EEOC Request No. 05960545 (June 15, 1998). The Commission notes that
OWCP has exclusive jurisdiction over the administration, interpretation,
and enforcement of the Federal Employees Compensation Act (FECA).
20 C.F.R. � 10.1. A review of applicable case law reveals that, in one
instance, an employee was allowed to pursue a claim against the agency
for allegedly intentionally depriving him of the opportunity to present
a disability claim to OWCP when it failed to process his FECA claim for
nearly two years. Grichenko v. USPS, 524 F.Supp. 672 (E.D.N.Y. 1981),
aff'd without opinion, 751 F.2d 368 (2nd Cir. 1984). Nevertheless,
the Circuit Court subsequently clarified that decision, stating that
because the employee was deprived of the opportunity to present a claim
to OWCP, the conduct in question foreclosed the employee's administrative
remedies such that the protections afforded by FECA were not available.
Stuto v. Fleishman, 164 F.3d 820 (2nd Cir. 1999). In the case at hand,
complainant did not assert that she was prevented from filing a FECA
claim, only that her continuation of pay was delayed.<3>
As stated, OWCP has exclusive jurisdiction over claims for compensation
under FECA. Further, the Commission has no jurisdiction over OWCP with
regard to the processing of FECA claims, or decisions to grant or deny
benefits. In the case at hand, complainant's request for interest on
her FECA award is properly characterized as a request for compensatory
damages. Thus, the only matter arguably within the Commission's
jurisdiction concerns the relief to which complainant would be entitled.
It is noted that the Commission has previously held that a request for
interest was sufficient to demonstrate injury for which relief could
be provided, such that an issue involving the agency's processing of an
OWCP claim stated a claim within the EEOC Regulations. Foster v. USPS,
EEOC Appeal No. 01951370 (May 8, 1995), request for reconsideration
denied EEOC Request No. 05950693 (May 16, 1996). The Commission,
however, has subsequently held that, when an allegation fails to show
that a complainant is aggrieved for purposes of the EEOC Regulations,
it will not be converted into an actionable claim merely because
the complainant has requested a specific relief. Lindsey v. USPS,
EEOC Request No. 05980410 (November 4, 1999). We find the rationale
set forth in Lindsey to be persuasive in this case. Finally, it is
noted that courts have recently held that allegations concerning the
processing of paperwork are not independently actionable. See Johnston
v. Henderson, 144 F.Supp.2d 1341 (S.D.FL. 2001), aff'd without decision,
277 F.3d 1380 (11th Cir. 2001) (mere allegation of improper processing
and delay of FMLA forms insufficient to state a claim). Accordingly it
is the decision of the Commission to AFFIRM the final agency decision.<4>
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
_____08-16-02_____________________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify
that the decision was mailed to claimant, claimant's representative
(if applicable), and the agency on:
_________________________
Date
_________________________
1It is noted that complainant's last name was misspelled in the previous
decision. The citation uses the correct spelling.
2Complainant, for the first time in her request for reconsideration,
raised reprisal as a basis for the alleged discriminatory action.
The Commission has stated that adverse actions need not qualify as
�ultimate employment actions� or materially affect the terms and
conditions of employment to constitute retaliation. EEOC Compliance
Manual, No. 915.003 (May 20, 1998). Instead, the statutory retaliation
clauses prohibit any adverse treatment that is based upon a retaliatory
motive and is reasonably likely to deter the charging party or others
from engaging in protected activity. Id. Nevertheless, we find that
the matter at issue does not rise to that level.
3Although it is unclear exactly how long the supervisor delayed in
submitting the papers, complainant's statements on appeal indicate that
the delay was only for a period of a few weeks.
4The Commission finds no evidence that the action cited herein was part
of a pattern or practice of discrimination, or part of a claim of hostile
work environment.