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.