Maylene L. Montena, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service (S.E./S.W. Region), Agency.

Equal Employment Opportunity CommissionJun 6, 2000
01973198 (E.E.O.C. Jun. 6, 2000)

01973198

06-06-2000

Maylene L. Montena, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service (S.E./S.W. Region), Agency.


Maylene L. Montena v. United States Postal Service

01973198

June 6, 2000

Maylene L. Montena, )

Complainant, )

) Appeal No. 01973198

v. ) Agency No. 4G770136096

)

William J. Henderson, )

Postmaster General, )

United States Postal Service )

(S.E./S.W. Region), )

Agency. )

____________________________________)

DECISION

Complainant timely initiated an appeal from a final agency decision

(FAD) concerning her complaint of unlawful employment discrimination in

violation of Section 501 of the Rehabilitation Act of 1973, as amended,

29 U.S.C. � 791 et seq. <1> The appeal is accepted pursuant to 64

Fed. Reg. 37,644, 37,659 (1999)(to be codified at 29 C.F.R. � 1614.405).

Complainant alleged that she was discriminated against on the basis of

physical disability (degenerative disks) when her Office of Workers'

Compensation Programs (OWCP) claim was denied on May 3, 1996, because

of controversion by the agency.

The record reveals that during the relevant time, complainant was

employed as a Carrier Technician at the agency's Houston, Texas facility.

Believing she was a victim of discrimination, complainant sought EEO

counseling and subsequently filed a formal complaint on June 24, 1996.

At the conclusion of the investigation, complainant was informed of

her right to request a hearing before an EEOC Administrative Judge or

alternatively, to receive a final decision by the agency. When complainant

failed to respond within the time period specified in 29 C.F.R. � 1614,

the agency issued the FAD from which complainant now appeals.

In its FAD, the agency concluded that complainant failed to make a prima

facie case of discrimination on the basis of her disability. On appeal,

complainant contends that agency officials lied so that her OWCP claim

would be denied. Complainant alleges that agency officials told OWCP

that she worked as a caterer, implying that her injury is attributable

to her activities outside the agency. According to complainant, these

statements prevented her from prevailing on her OWCP claim. Complainant

argues that the agency's action violates Title VII. The agency requests

that we affirm its FAD.

While conclude that complainant failed to state a claim. Volume 64

Fed. Reg. 37,644, 37,656(1999)(to be codified and hereinafter referred

to as 29 C.F.R. � 1614.107(a)(1)) provides that the agency shall

dismiss a complaint that fails to state a claim under � 1614.103

or � 1614.106(a).

Complainant argues that the agency falsified controversion letters written

in opposition to her OWCP claim. Upon review, the Commission finds that

the allegations of the complaint constitute a collateral attack on the

OWCP process and, as such, fail to state a cognizable claim. See Reloj

v. Department of Veterans Affairs, EEOC Request No. 05960545 (June 15,

1998) (allegation that agency's provision of false information to the

OWCP resulted in denial of benefits is a collateral attack on OWCP's

decision and, thus, fails to state a claim). It has been long held that

an agency has an obligation to controvert an employee's OWCP claim when

there is a dispute as to an employee's entitlement. As a general rule,

controversion of an OWCP claim does not affect a term, condition or

privilege of employment so as to render a person aggrieved. See Hall

v. Department of Treasury, EEOC Appeal No. 01945595 (February 23, 1995).

Accordingly, we AFFIRM the FAD.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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 64

Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred

to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter

referred to as 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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)

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:

June 6, 2000 ____________________________

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

1 On November 9, 1999, revised regulations governing the EEOC's federal

sector complaint process went into effect. These regulations apply to all

federal sector EEO complaints pending at any stage in the administrative

process. Consequently, the Commission will apply the revised regulations

found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.