0120110105
02-18-2011
Patricia A. Gullette, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Pacific Area), Agency.
Patricia A. Gullette,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Pacific Area),
Agency.
Appeal No. 0120110105
Agency No. 4F-945-0208-10
DECISION
Complainant filed a timely appeal with this Commission from the
Agency's decision dated August 20, 2010, dismissing 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.
BACKGROUND
Complainant was a Modified Distribution Clerk at the Agency's Processing
and Distribution Center in Oakland, California. The record indicated
that Complainant contacted the EEO Counselor on March 31, 2010, regarding
her annuity which the Office of Personnel Management (OPM) calculated
based on information provided by the Agency. When the matter could
not be resolved informally, Complainant filed a formal complaint on
July 13, 2010. In her complaint, Complainant alleged that the Agency
subjected her to discrimination on the bases of disability (right
shoulder) and reprisal for prior protected EEO activity under Section
501 of the Rehabilitation Act of 1973 when, since March 1, 2010, she has
been receiving the wrong retirement annuity calculated by OPM based on
inaccurate information provided by the Agency. Complainant indicated
that this issue was created by a series of events caused by the Agency's
actions from 2000 to the present. Complainant also noted that she was
denied reasonable accommodation and issued a Notice of Separation which
forced her to retire effective September 30, 2007 and that the Agency
has failed to comply with court orders and its own rules and regulations
based on her prior civil actions and grievances.
The Agency issued its final decision listing the events raised by
Complainant as the following:
1. Since on or about February 4, 2000, Complainant was denied Level
6 pay as outlined in the December 30, 1999 "Limited Duty Job Offer"
signed on February 4, 2000.
2. On an ongoing basis, the terms of grievance-arbitration decisions
dated on or about 2001, 2002, and 2004 that agreed to pay Complainant
Level 6 Office of Workers Compensation Programs (OWCP) Limited duty Job
Offer pay retroactive to February 4, 2000. However, the Agency has not
complied with the agreements and has resulted in erroneous retirement
calculations;
3. On December 4, 2006, the Agency failed to give Complainant any
priority consideration when she was informed that there was no work
available within her restrictions and within the local commuting area;
4. Complainant was denied reasonable accommodations, not allowed to
return to work, on October 23, 2006, issued a "Notice of Separation
On OWCP Rolls for More Than One Year", and was subsequently forced to
retire effective September 30, 2007, to protect her benefits;
5. The Agency failed to comply with court orders, grievances, and
arbitration decisions; and
6. Based on information received in March 2010, Complainant's monthly
retirement annuity calculated by OPM is inaccurate and incorrect.
The Agency dismissed claims (2) and (5) pursuant to 29 C.F.R. �
1614.107(a)(1) for using the EEO Complaint process to lodge a collateral
attack against another forum. In addition, the Agency dismissed claim
(1) pursuant to 29 C.F.R. � 1614.107(a)(1) for stating the same claim
in a prior EEO complaint. The Agency then dismissed claims (1) - (5)
pursuant to 29 C.F.R. � 1614.107(a)(2) for failure to timely raise a
matter with an EEO Counselor. Finally, the Agency dismissed claim (6)
pursuant to 29 C.F.R. � 1614.107(a)(1) for Complainant had not shown
how she was aggrieved by the alleged action. Therefore, the Agency
dismissed the complaint as a whole.
Complainant appealed arguing that the complaint should be remanded
back for further processing. Complainant included several documents
from prior EEO complaints, grievances, and civil actions to support
her claim. In essence, Complainant argued that the events raised in her
complaint culminated in the error in her annuity which was a result of
her disability retirement. Complainant noted that the Agency's actions
which culminated in the errors in her annuity were done in conjunction
with the settlement of her lawsuit in U.S. District Court. The Agency
requested that we affirm its dismissal.
ANALYSIS AND FINDINGS
As an initial matter, we find that the Agency improperly defined
Complainant's claim of discrimination as six separate events. A review
of the record indicates that Complainant has alleged discrimination
when her monthly retirement annuity calculated by OPM was inaccurate
and incorrect.1 In support of her claim of discrimination, Complainant
asserted that the Agency acted improperly creating the situation she is in
with her disability annuity as determined by OPM. Complainant pointed to
the Agency's failure to comply with the settlement agreement, grievances,
and other issues related to her denials of reasonable accommodation
and OWCP claims.2 The Agency designated this claim of discrimination
as claim (6) and claims (1)-(5) were raised in support of claim (6).
Therefore, the Commission shall only review the dismissal of claim (6)
pursuant to 29 C.F.R. � 1614.107(a)(1).
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
(Apr. 21, 1994).
Upon review of the record, we find that the crux of Complainant complaint
is that her annuity was improperly determined by OPM because of the
agency's inability to follow settlement agreements, grievances, and
OWCP claims. We find that such a claim constitutes a collateral attack
on all of these different venues and proceedings. 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). It is inappropriate to now
attempt to use the EEO process to collaterally attack actions which
occurred during the settlement of a civil action, the grievance process,
or OWCP at the Department of Labor. Further, Complainant should raise her
issue with OPM's calculation of her disability annuity with OPM itself.
Therefore, we find that the dismissal of the complaint was appropriate
albeit on other grounds.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the Agency's
final decision dismissing the complaint.
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 (November 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 18, 2011
__________________
Date
1 This claim was listed in the Agency's decision as claim (6).
2 The record indicates that Complainant has raised her claims of denial
of reasonable accommodation within prior EEO complaints.
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0120110105
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120110105