Brenda L. Frazier, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionApr 25, 2000
01993604 (E.E.O.C. Apr. 25, 2000)

01993604

04-25-2000

Brenda L. Frazier, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Brenda L. Frazier, )

Complainant, )

)

v. ) Appeal No. 01993604

) Agency No. 4-D-290-0006-99

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

______________________________)

DECISION

On March 26, 1999, complainant filed a timely appeal with this Commission

from a final agency decision pertaining to her complaint of unlawful

employment discrimination in violation of Title VII of the Civil Rights

Act of 1964, as amended, 42 U.S.C. � 2000e et seq. and Section 501 of

the Rehabilitation Act of 1973, as amended, 29 U.S.C. �791 et seq.<1>

The Commission accepts the appeal in accordance with 64 Fed. Reg. 37,644,

37,659 (1999)(to be codified at 29 C.F.R. �1614.405).

The record shows that complainant sought EEO counseling on October 6,

1998, claiming that she had been discriminated against on the bases

of race, sex, disability and reprisal when: (1) on June 6, 1997,

the Human Resources Specialist (HRS) wrote to the Office of Workers'

Compensation (OWCP) that �the agency vehemently objects to the OWCP

compensating complainant; (2) on June 30, 1996, the HRS requested an IME

[Independent Medical Examination] and stated that the agency doubted that

the employment injury could be the sole cause of complainant's permanent

condition; (3) on June 30, 1997, the HRS wrote to the OWCP and stated

that complainant was working full shift duty on June 2, 1996,when she was

working limited/light duty answering the telephone; and, (4) on April 24,

1998, complainant contacted the Senior Injury Compensation Specialist

to assist/correct what the HRS did, and subsequently, on May 15, 1998,

the Senior Injury Compensation Specialist wrote to her stating that she

did not find any improprieties. Subsequently, complainant filed a formal

complaint concerning these issues.

The record also shows that by letter dated July 27, 1998, complainant's

OWCP claim was denied because �the evidence submitted in support of

the application is not sufficient to warrant modification of the prior

decision�.

The agency issued a final decision dismissing the complaint on the basis

of untimely EEO counselor contact after finding that complainant had

failed to seek counseling within 45 days of the alleged incidents.

On appeal, complainant contends that at the time the letters in question

were written by the HRS, she did not receive a copy of the letters and

was therefore, unaware of the alleged discrimination.

While the agency dismissed complainant's complaint for untimely EEO

Counselor contact, the Commission determines that this case is more

properly analyzed in terms of whether complainant stated a claim.

Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter

cited as 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 22,

1994).

The record reflects that the matters contained in the instant complaint

relate to the processing of complainant's OWCP claim. An attack of the

merits of an OWCP claim, or of the agency's action in representing its

interests in the OWCP forum, even by the submission of allegedly false

information, does not state a claim. See Pirozi v. Department of the

Navy, EEOC Request No. 05970146 (October 23, 1998); Ward v. USPS, EEOC

Request NO. 05980036 (March 19, 1998).

Accordingly, the agency's decision to dismiss the instant complaint was

proper and is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0300)

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 64

Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred

to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter

referred to as 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).

COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)

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:

April 25, 2000

DATE

Carlton

M.

Hadden,

Acting

Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

_____ __________________________________

DATE EQUAL EMPLOYMENT ASSISTANT

1On November 9, 1999, revised regulations governing the EEOC's federal

sector complaint process went into effect. These regulations apply to all

federal sector EEO complaints pending at any stage in the administrative

process. Consequently, the Commission will apply the revised regulations

found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.