0120110086
02-24-2011
Gary J. Williams, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Southwest Area), Agency.
Gary J. Williams,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Southwest Area),
Agency.
Appeal No. 0120110086
Agency No. 4G-700-0109-10
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated August 26, 2010, dismissing his 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.
BACKGROUND
In his complaint, Complainant alleged that the Agency subjected him to
discrimination on the bases of sex (male) and color (dark skin) when
on or about April 16, 2010, the Human Resources Management Specialist
failed to timely process his injury claim.
The Agency dismissed the complaint for untimely EEO Counselor contact.
The Agency determined that Complainant did not contact an EEO Counselor
until May 13, 2010, approximately 432 days after he suffered an injury
on March 7, 2009, and approximately 350 days from the date his claim
was accepted by the Office of Workers’ Compensation Programs (OWCP).
The Agency found that the record did not reflect that Complainant suffered
an adverse action on April 15, 2010, as he alleged. As a result, the
Agency dismissed the Complainant pursuant to 29 C.F.R. § 1614.107(a)(2).
Additionally, the Agency dismissed the complaint for failure to state
a claim. The Agency determined that Complainant’s complaint
amounted to an impermissible collateral attack on the OWCP process.
As a result, the Agency also dismissed the complaint pursuant to 29
C.F.R. § 1614.107(a)(1) for failure to state a claim.
CONTENTIONS ON APPEAL
On appeal, Complainant argues that an Agency official discriminated
against him when she made unfounded statements to Complainant’s doctor
and failed to facilitate payment of his workers’ compensation claim.
As a result, Complainant requests that the Commission reverse the
Agency’s dismissal. The Agency requests that the Commission affirm
the dismissal.
ANALYSIS AND FINDINGS
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. Dep’t
of the Air Force, EEOC Request No. 05931049 (April 21, 1994).
Here, the Commission finds that the Agency properly dismissed the
instant formal complaint for failure to state a claim. The Commission
finds that Complainant’s allegation constitutes a collateral attack
on the workers’ compensation process. 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 appropriate forum for
Complainant to raise any concerns that he may have with the Agency’s
handling of his workers’ compensation claim is through the workers’
compensation process itself. Therefore, the Commission finds that the
Agency correctly dismissed the complaint for failure to state a cognizable
claim under the EEO complaint process.1
CONCLUSION
The Agency’s decision dismissing the instant formal complaint for
failure to state a claim 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 (Nov. 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
February 24, 2011
Date
1 Because the Commission finds that Complainant’s allegation fails to
state a claim, the Commission need not address the Agency's alternative
grounds for dismissal for untimely EEO Counselor contact.
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0120110086
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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