01a53136
07-07-2005
Jean S. Lee, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Capital-Metro Area) Agency.
Jean S. Lee v. United States Postal Service
01A53136
July 7, 2005
.
Jean S. Lee,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Capital-Metro Area)
Agency.
Appeal No. 01A53136
Agency No. 4K-220-0019-05
DECISION
Complainant filed a timely appeal with this Commission from an
agency decision pertaining to her complaint of unlawful employment
discrimination in violation of Section 501 of the Rehabilitation Act
of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
The Commission accepts
the appeal in accordance with 29 C.F.R. � 1614.405.
In her complaint, complainant alleged that she lost time away from
work and acquired medical expenses due to a job related injury.
The record indicates that the U.S. Department of Labor, Office of
Workers' Compensation Programs (OWCP) terminated complainant's medical
and wage loss benefits claim effective September 15, 2004. The agency
dismissed complainant's complaint for failure to state a claim pursuant
to 29 C.F.R. � 1614.107(a)(1). Specifically, the agency stated that
complainant's allegation of discrimination is based on termination
of her claim by the OWCP, which fails to state a claim reviewable by
the Commission. The agency therefore concluded that complainant is not
aggrieved within the definition of the law, given that she has not raised
a proper claim before the EEOC.
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).
The Commission finds that the agency properly dismissed complainant's
complaint because it fails to state a claim. The Commission has
consistently held that it is within OWCP's jurisdiction to determine
whether a compensation claim with OWCP has merit, and OWCP claims are
not appealable to the EEOC. See Hogan v. Department of the Army, EEOC
Request No. 05940407 (September 29, 1994). Accordingly, we AFFIRM the
agency's decision to dismiss the complaint.
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:
July 7, 2005
______________________________ __________________
Carlton M. Hadden, Director Date
Office of Federal Operations