05980369_r
03-29-2001
John M. Walsh, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
John M. Walsh v. United States Postal Service
05980369
March 29, 2001
.
John M. Walsh,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
Agency.
Request No. 05980369
Appeal No. 01974146
Agency No. 4B-028-0039-97
DECISION ON REQUEST FOR RECONSIDERATION
On February 10, 1998, the agency timely initiated a request to the
Equal Employment Opportunity Commission to reconsider the decision in
John M. Walsh v. United States Postal Service, EEOC Appeal No. 01974146
(January 29, 1998). EEOC regulations provide that the Commissioners
may, in their discretion, reconsider any previous Commission decision.
See 29 C.F.R. � 1614.405(b). The party requesting reconsideration must
submit written argument or evidence which tends to establish one or more
of the following two criteria: the appellate decision involved a clearly
erroneous interpretation of material fact or law; or the decision will
have a substantial impact on the policies, practices or operations of
the agency. Id. For the reasons set forth herein, the agency's request
is granted.
The record indicates that complainant filed his complaint alleging
discrimination based on disability (cervical strain and rotator cuff right
shoulder) and in reprisal for prior EEO activity when an agency official
submitted false information to the Department of Labor, concerning his
job description, which resulted in the termination of his compensation
benefits effective September 17, 1996. The Commission previously reversed
the agency's dismissal of the complaint for failure to state a claim.
On request, the agency, reiterating the arguments previously made,
contends that the Commission's previous decision involves an erroneous
interpretation of law. The agency also notes that complainant challenged
the termination of his workers' compensation benefits with the Department
of Labor and he was subsequently awarded workers' compensation benefits
retroactive to September 17, 1996.
EEOC Regulation 29 C.F.R. � 1614.107(a)(1) provides that prior to a
request for a hearing in a case, the agency shall dismiss an entire
complaint that fails to state a claim pursuant to 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. Diaz v. Department of the Air Force, EEOC Request
No. 05931049 (April 21, 1994).
Upon review, the Commission finds that the previous decision involved
a clearly erroneous interpretation of law. It is well-settled that
an employee cannot use the EEO complaint process to lodge a collateral
attack on another proceeding. Kleinman v. USPS, EEOC Request No. 05940585
(September 22, 1994); Lingad v. USPS, EEOC Request No. 05930106 (June
24, 1993). Moreover, as the Commission has held in Lau v. National
Credit Union Administration, EEOC Request No. 05950037 (March 18, 1996),
a claim that an agency discriminated against an individual by providing
false or misleading information to the Office of Workers' Compensation
Program (OWCP), as here, does not state an actionable claim because
�it merely serves to attack the manner in which the agency represented
its position in the OWCP forum.� The Commission finds that since the
instant complaint challenges the agency's submission of allegedly false
information to the OWCP, the Commission's holding in Lau is controlling.
Therefore, the Commission finds that the complaint does not state a
claim within the purview of the regulations.
Accordingly, the Commission finds that the agency's request meets
the criteria of 29 C.F.R. � 1614.405(b), and it is the decision of the
Commission to GRANT the agency's request. The decision of the Commission
in Appeal No. 01974146 is REVERSED. The agency's decision dismissing
complainant's complaint is hereby AFFIRMED. There is no further right
of administrative appeal on the decision of the Commission on a Request
to Reconsider.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0900)
This decision of the Commission is final, and there is no further right
of administrative appeal from the Commission's decision. 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.
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
March 29, 2001
__________________
Date