01973198
06-06-2000
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.