EEOC Appeal No. 0120171239
05-02-2017
Tricia B. v. U.S. Postal Serv.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Tricia B.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Southern Area),
Agency.
Appeal No. 0120171239
Agency No. 4G-770-0042-17
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated January 12, 2017, dismissing a formal 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
During the period at issue, Complainant worked as a Mail Processing Clerk for the Agency in Houston, Texas.
On December 15, 2016, Complainant filed the instant formal complaint. Complainant alleged that the Agency subjected her to discrimination on the basis of disability when:
on October 26, 2016, she received a letter from the Department of Labor, Office of Workers' Compensation Program (OWCP) stating that her salary was not correctly reported.
In its January 12, 2017 final decision, the Agency dismissed the instant formal complaint for failure to state a claim, pursuant to 29 C.F.R. � 1614.107(a)(1). The Agency found that the formal complaint constituted an impermissible collateral attack on the Department of Labor's Office of Workers' Compensation Programs (OWCP) process. The Agency determined that this matter was outside of the Commission's jurisdiction and should have been raised with the Department of Labor.
The instant appeal followed. Complainant, on appeal, contends that the Agency was responsible for sending the incorrect reporting of her salary to the OWCP. Specifically, Complainant further states that "I am an aggrieved person who has been economically injured by the actions and lack thereof of the agency. This was proven by a third-party review that my salary was not reported correctly before the reduction of benefits."
ANALYSIS AND FINDINGS
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).
We have previously held that a complainant cannot use the EEO complaint process to challenge actions which occurred within the OWCP adjudicatory process for workers' compensation claims. See Pirozzi v. Department of Navy, EEOC Request No. 05970146 (October 23, 1998) (allegedly false statements made by agency to OWCP during OWCP's processing of a workers' compensation claim goes to the merits of compensation claim); Hogan v. Department of the Army, EEOC Request No. 05940407 (September 29, 1994) (reviewing a claim that agency officials provided misleading statements to OWCP would require the Commission to essentially determine what workers' compensation benefits the complainant would likely have received); Reloj v. Department of Veterans Affairs, EEOC Request No. 05690545 (June 15, 1998) (claim that agency's providing 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). Dismissal of an EEO complaint is appropriate where the complainant is attempting 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 subject of Complainant's complaint concerns allegedly inaccurate information provided to the OWCP by the Agency. The proper forum for Complainant to have raised challenges to actions which occurred during the OWCP proceeding, was at that proceeding itself, because any remedial relief available to Complainant would be through the OWCP process. There is no remedial relief available to Complainant on this matter through the EEO complaint process.
The Agency's final decision dismissing the formal complaint for the reason discussed here is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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 Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
May 2, 2017
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
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