0120073642
10-25-2007
Renee R. Krugel, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Renee R. Krugel,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120073642
Agency No. 4B060006207
DECISION
Complainant filed a timely appeal with this Commission from the
agency's decision dated August 7, 2007, 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. Upon review, the Commission finds that complainant's
complaint was properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1)
for failure to state a claim. In a complaint dated July 25, 2007,
complainant alleged that she was subjected to discrimination on the basis
of disability (myocardial infarction) when she was issued a Notice of
Involuntary Administrative Salary Offsets.
Briefly, complainant was informed in October 2005 that she owed the
agency money because of an overpayment of continuation of pay related to
a worker's compensation claim she filed. Complainant filed a grievance
on the overpayment issue. It appears that as part of the grievance
settlement, no action was to be taken until all of her appeals were
exhausted. In May 2007, because complainant had undertaken no effort to
repay the monies owed, the agency issued the above Notice informing her
that her salary would be garnished for the monies owed. Complainant is
alleging that the agency breached her grievance settlement.
The Commission has held that an employee cannot use the EEO complaint
process to lodge a collateral attack on another proceeding. See Wills
v. Department of Defense, EEOC Request No. 05970596 (July 30, 1998);
Kleinman v. United States Postal Service, EEOC Request No. 05940585
(September 22, 1994); Lingad v. United States Postal Service,
EEOC Request No. 05930106 (June 25, 1993). The proper forum for
complainant to have raised her challenges to actions which occurred
during the grievance proceeding was at that proceeding itself. Thus,
to the extent that complainant is alleging the agency is violating a
settlement agreement within the grievance process, the Commission has
no jurisdiction over such matters. To the extent that complainant is
alleging that the Office of Worker's Compensation wrongly denied her
continuation of pay claims, those matters should be addressed with OWCP,
as the Commission has no jurisdiction over those matters as well.
Finally, to the extent that complainant is challenging the agency's
efforts to collect the monies owed, she was first put on notice of
the over payment in October 2055 but did not contact an EEO counselor
until May 1, 2007. EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires
that complaints of discrimination should be brought to the attention
of the Equal Employment Opportunity Counselor within forty-five (45)
days of the date of the matter alleged to be discriminatory. We note,
however that the use of the negotiated grievance procedure does not toll
the time limit for contacting an EEO Counselor. Schermerhorn v. United
States Postal Service, EEOC Request No. 05940729 (February 10, 1995).
As such, her EEO counselor contact was untimely.
Accordingly, the agency's final decision dismissing complainant's
complaint is affirmed.
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
October 25, 2007
__________________
Date
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0120073642
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120073642