0120112929
10-05-2011
Adriene Berkowitz, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Southeast Area), Agency.
Adriene Berkowitz,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Southeast Area),
Agency.
Appeal No. 0120112929
Agency No. 4H335009311
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated April 25, 2011, dismissing her 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Supervisor, Customer Service at the Agency’s Goldenrod, Florida
Post Office.
On April 8, 2011, Complainant filed a formal EEO complaint alleging
that the Agency subjected her to discrimination on the bases of sex
(female), religion (Jewish), color (white), disability (migraines),
age (48), and reprisal for prior protected EEO activity when, after an
on-the-job injury which occurred on October 2, 2010, she was not given
immediate medical attention, a timely accident report was not filed,
and her injury claim was controverted.
The Agency dismissed the complaint for failure to contact an EEO counselor
in a timely manner pursuant to 29 C.F.R. § 1614.107(a)(2). The instant
appeal followed.
In her appeal, Complainant states she did not contact the EEO counselor
sooner because she did not know she would get a bill from the medical
provider. Complainant states that the Department of Labor approved her
claim and that she was told by “Injury Comp” that “thousands of
bills are still not paid.”
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. § 1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the Equal Employment
Opportunity Counselor within forty-five (45) days of the date of the
matter alleged to be discriminatory or, in the case of a personnel
action, within forty-five (45) days of the effective date of the action.
The record discloses that the latest alleged discriminatory event occurred
in October 2010, but Complainant did not initiate contact with an EEO
Counselor until March 3, 2011, which is beyond the forty-five (45) day
limitation period. On appeal, Complainant has presented no persuasive
arguments or evidence warranting an extension of the time limit for
initiating EEO Counselor contact.
To the extent Complainant is raising claims concerning the Office of
Workers’ Compensation Programs’ failure to pay certain medical
bills, 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 her challenges
to actions which occurred within the worker’s compensation process
is within that process. It is inappropriate to use the EEO process to
collaterally attack actions which involve worker’s compensation matters.
Accordingly, the Agency's final decision dismissing Complainant's
complaint is 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
October 5, 2011
__________________
Date
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0120112929
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120112929