01A31821_r
05-22-2003
Elizabeth A. Ward, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Elizabeth A. Ward v. United States Postal Service
01A31821
May 22, 2003
.
Elizabeth A. Ward,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A31821
Agency No. 4-C-175-0009-03
DECISION
Complainant filed a timely appeal with this Commission from a final agency
decision, issued on December 23, 2002, pertaining to 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.
Complainant contacted the EEO office claiming that she was subjected
to discrimination based on race, sex, age, disability, and in reprisal
for prior protected activity. Informal efforts to resolve complainant's
concerns were unsuccessful. Subsequently, complainant filed a formal
complaint. The agency, in its final decision, framed the claim as follows:
On October 8 and 9, 2002, complainant was harassed by management due to
her medical restrictions and subjected to a hostile work environment based
on statements that her supervisor submitted to the Department of Labor.
The agency dismissed the complaint for failure to state a claim.
The agency noted that in her request for counseling, complainant
claimed that "[the agency official] discriminated against me in an
attempt to keep me from returning to work because I could not key mail.
She used erroneous information regarding my limitations to force me
to stay at home." In her formal complaint, complainant claimed that
her supervisor submitted to the Department of Labor a statement that
complainant believes was an attempt to keep her from returning to work.
The agency reasoned that the claims were a collateral attack on the OWCP
process, and therefore fail to state a claim.
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 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,
.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).
In her formal complaint, complainant claimed that she was discriminated
against by her supervisor and Postmaster. According to complainant,
these actions began after she challenged her supervisor's statement to the
Department of Labor regarding a work injury. For example, complainant
contended that her supervisor refused to speak with her without the
Postmaster or complainant's union representative being present and
misrepresented her medical restrictions to other managers. Further,
the Counselor's Report indicates that on October 9, 2002 complainant
was told to sit at a corner desk, without any work, for eight hours.
Following this incident, complainant stated she was subjected to ridicule
by her co-workers. Based on a review of the record, however, the
Commission does not find that the alleged events are sufficiently severe
or pervasive to state a claim of discriminatory harassment. See Cobb
v. Department of the Treasury, EEOC Request No. 05970077 (March 13, 1997).
Moreover, to the extent that complainant believes that her supervisor's
purportedly false statements to the OWCP were discriminatory, we find that
such a complaint is an impermissible collateral attack. 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); 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 raise her challenges to
her supervisor's statements is during the workers' compensation process.
Accordingly, the agency's decision to dismiss the complaint was proper
and is hereby AFFIRMED.
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
May 22, 2003
__________________
Date