01A24565_r
12-10-2003
Shirley Emig v. United States Postal Service
01A24565
December 10, 2003
.
Shirley Emig,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A24565
Agency No. 4C-175-0017-99
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision dated July 30, 2002, 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. and
the Age Discrimination in Employment Act of 1967 (ADEA), as amended,
29 U.S.C. � 621 et seq.<1>
In the instant EEO complaint, filed on January 4, 2002, complainant
alleged that she was subjected to discrimination on the bases of
disability and in reprisal for prior protected activity. In her formal
complaint, complainant made the following entry in that portion of
the complaint form requesting that complainants identify the nature of
their claims:
[A named agency official] becoming the branch manager has lied &
twisted all issues with my arm & elbow to other managers, Dept of Labor.
. . . . . The suspension was issued because I was doing rural carrier
work & was an illegal settlement.<2>
On July 30, 2002, the agency issued a final decision, determining that
complainant's complaint was comprised of the following two claims:
(1) on an unspecified date, her supervisor lied and twisted issues with
her arm and elbow to other managers, [and to the ]Department of Labor
and physicians; and
(2) on an unspecified date, her supervisor lied about what a rural
carrier's job is, and issued a suspension for doing rural carrier work
with illegal settlement.
The agency dismissed the complaint for failure to state a claim. The
agency determined that complainant did not suffer harm or a concrete
effect on her employment as a result of the alleged incidents.
Thereafter, complainant filed an appeal. In response, the agency contends
in pertinent part that complainant raised the same claim of discrimination
in Agency No. 4C-175-0062-98. The agency stated that on May 4, 1998,
complainant filed a formal complaint in Agency No. 4C-175-0062-98,
alleging that she was discriminated against on the bases of disability
and retaliation when (1) the agency refused to move her letter case;
(2) she was not allowed to perform the duties of her job in the manner
her physician wished in order to avoid re-injury to her arm; and (3)
on January 27, 1998, she received a one-week suspension because of false
allegations, which she believes she was not allowed to defend. Moreover,
the agency contends that complainant's complaint is a collateral attack
on the Office of Workers' Compensation Program.
The record in this case contains a copy of a bench decision, dated
April 10, 2000, issued by an Administrative Judge (AJ) in Case
No. 4-C-175-0062-98. Therein, the AJ noted that complainant had filed
a formal complaint on May 4, 1998, and that the issues accepted for
investigation were: (a) the agency refused to move complainant's letter
case; (b) she was not allowed to perform the duties of her job in the
manner that her physician wanted, in order to avoid re-injury to her arm;
and (c) on January 27, 1998, complainant received a one-week suspension
because of false allegations that she believes that she was not allowed
to defend. The AJ found no discrimination, and on May 12, 2000, the
agency issued a final action implementing the AJ's decision.
Claim (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. Department of the Air Force, EEOC Request
No. 05931049 (April 21, 1994).
In claim (1), complainant alleged that her supervisor lied and twisted
issues with her arm and elbow to other managers, the Department of
Labor, and physicians. 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. U.S. Postal Service, EEOC
Request No. 05940585 (September 22, 1994); Lingad v. U.S. Postal Service,
EEOC Request No. 05930106 (June 24, 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, claim (1)
fails to state a claim. Therefore, the Commission finds that the agency
properly dismissed claim (1).
Claim (2)
As noted above, the agency, in its response to complainant's appeal,
determined that complainant raised the same claim in a prior complaint.
While the agency dismissed this claim for failure to state a claim, the
Commission determines that it is properly analyzed in terms of whether
it states the same claim that was raised in a prior complaint Upon our
review of the record, the Commission determines that the matter raised
in Claim (2) is the same matter raised in Agency No. 4C-175-0062-98.
The Commission notes that in the instant complaint, complainant does
not expressly identify the date of the suspension raised in claim
(2) as having occurred in January 1998,(the date of the suspension in
Agency No. 4C-175-0062-98); however, a fair reading of the matter as
identified by complainant in the instant complaint in comparison with
the suspension as identified by the AJ in the bench decision for Agency
No. 4C-175-0062-98 reflects that both claim (2) of the instant complaint
and the suspension identified in Agency No. 4C-175-0062-98, address the
same matter. The agency's dismissal of claim (2) 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 10, 2003
__________________
Date
1The record reveals that in its final
decision, the agency determined that complainant failed to allege a
basis of discrimination that fell under the purview of EEO law and
regulations. A review of the record reveals that in her complaint and
Counselor's Report, complainant alleged she was discriminated against
on the bases of disability and in reprisal for prior protected activity.
2For purposes of clarity, the Commission has numbered the agency's
framing of complainant's claims as (1) - (2).