Sharon L. Dean<1>, Complainant,v.John E. Potter, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionDec 30, 2003
01a35127 (E.E.O.C. Dec. 30, 2003)

01a35127

12-30-2003

Sharon L. Dean, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.


Sharon L. Dean v. United States Postal Service

01A35127

December 30, 2003

.

Sharon L. Dean<1>,

Complainant,

v.

John E. Potter,

Postmaster General,

United States Postal Service,

Agency.

Appeal No. 01A35127

Agency No. 1B-145-0044-03

DECISION

Complainant filed a timely appeal with this Commission from the final

agency decision dated August 7, 2003, dismissing her complaint of unlawful

employment discrimination in violation of Title VII of the Civil Rights

Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.

In her complaint, filed on July 22, 2003, complainant alleged that she

was subjected to harassment on the basis of race when:

(1) management delayed the processing of her claim for workers'

compensation through the Office of Workers' Compensation Programs

(OWCP); and

(2) management submitted false, misleading, and libelous statements to

OWCP in an attempt to deny her compensation benefits.

The agency dismissed the complaint for failure to state a claim.

Specifically, the agency found that complainant's claims constituted a

collateral attack on the Department of Labor's processing of complainant's

OWCP claim.

On appeal, complainant argues that the agency did not frame her complaint

correctly. Complainant further argues that her claims do not constitute

a collateral attack on the OWCP. Furthermore, complainant states that

her claims are "against the Agency for its negligent delay in fulfilling

obligations outlined in the United States Postal Service's Employee and

Labor Relations Manual, and regulations against providing false statement

to OWCP, also governed by the ELM."

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. Department of the Air Force,

EEOC Request No. 05931049 (April 21, 1994).

The Commission first determines that, contrary to complainant's

assertions, the agency properly identified the matters raised in

the instant complaint. The record reveals that complainant alleged

that the Plant Manager purportedly delayed the processing of her claim

for workers' compensation and submitted false, misleading and libelous

statements to the OWCP. The Commission has held that an employee cannot

use the EEO complaint process to lodge a collateral attack on another

forum's 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 challenge to actions that

occurred during the processing of her OWCP claim was with the Department

of Labor. It is inappropriate to now attempt to use the EEO process to

collaterally attack actions which occurred during the processing of her

workers' compensation claim. Since complainant's claim is a collateral

attack on another forum's proceeding, complainant fails to state a claim.

Accordingly, the agency's final decision to dismiss the 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

December 30, 2003

__________________

Date

1The record reveals that during the relevant

period complainant changed her last name from "Berritella" to "Dean."