0120110579
04-19-2011
Carol F. Cichocki, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Western Area), Agency.
Carol F. Cichocki,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Western Area),
Agency.
Appeal No. 0120110579
Agency No. 1E-554-0037-10
DECISION
Complainant filed a timely appeal with this Commission from the
Agency's decision dated October 4, 2010, dismissing her 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
At the time of events giving rise to this complaint, Complainant
worked as a Mail Processing Clerk at the Agency's Processing and
Distribution Center facility in Minneapolis, Minnesota. The record
indicated that Complainant filed a prior EEO complaint, namely Agency
No. 1E-554-0013-10, on June 24, 2010. In Agency No. 1E-554-0013-10,
Complainant alleged that in May 2010; she was sent home due to the
Agency's National Reassessment Program (NRP). The Agency determined
that Complainant's claim of disability discrimination falls within the
pending class action, McConnell, et al. v. U.S. Postal Serv., Agency Case
No. 4B-140-0062-06. Thus, the Agency determined Complainant's claim of
disability discrimination would be subsumed in the McConnell complaint.
When Complainant received the documents regarding Agency
No. 1E-554-0013-10, Complainant noticed that her medical documentation had
been altered. Complainant believed that they were changed by management
in order to misrepresent her restrictions. Complainant contacted the
EEO Counselor again. When the matter could not be resolved information,
Complainant was issued a notice of right to file a formal complaint.
On September 17, 2010, Complainant filed a formal complaint alleging that
the Agency subjected her to discrimination on the bases of disability
(back and legs) and reprisal for prior protected EEO activity under
Section 501 of the Rehabilitation Act of 1973 when, on May 12, 2010,
Complainant discovered that her doctor's restrictions were altered by
management. Complainant indicated that she sought, among other things,
a position in line with her restrictions; restoration of losses due to
being sent home based on the NRP; and money for unlawful retaliation
and disability-based discrimination.
The Agency dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a)(8)
for alleging dissatisfaction with her prior EEO complaint. The Agency
indicated that Complainant's instant complaint constituted a "spin-off"
complaint of Agency No. 1E-554-0013-10. Further, the Agency dismissed
the matter pursuant to 29 C.F.R. � 1614.107(a)(1) finding that Complainant
had not shown that she was subjected to any adverse action. Therefore,
the Agency dismissed the complaint.
Complainant appealed asserting that her claim was not a "spin-off"
and that in her complaint; she alleged that management committed fraud.
As such, Complainant asserts that her claim is separate from the claims
raised in the McConnell class action. Complainant asserted that the
fraud on the Agency's part is what resulted in the decision that placed
her off work. Therefore, she argued that her complaint should not have
been dismissed.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.107(a)(8) provides for the dismissal
of complaints that allege dissatisfaction with the processing of a
previously filed complaint. Upon review of the complaint, we find that
Complainant alleged that management committed fraud when her medical
documents were altered. We find that such a complaint is separate from
her complaint in Agency No. 1E-554-0013-10 and does not constitute a
"spin-off" complaint. Therefore, we find that the Agency's dismissal
pursuant to 29 C.F.R. � 1614.107(a)(8) was not appropriate.
The Agency also dismissed the matter pursuant to 29 C.F.R. �
1614.107(a)(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. Dep't of
the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994). We note that
Complainant alleged in the instant complaint that she was harmed when
her medical documents were altered. A review of the record, we find
that Complainant, in essence, has asserted that the Agency's alteration
of her medical documents resulted in Complainant being placed off work
pursuant to the NRP. As such, Complainant sought restoration of losses
due to being sent home based on the NRP. We find that Complainant's
claim and remedy are inextricable intertwined with the issues raised in
the McConnell class action. We agree with Complainant that her claim
of fraud is separate; however the remedy sought by Complainant is not
available here but only available in her prior EEO Complaint, namely
Agency No. 1E-554-0013-10, as subsumed in the McConnell class action.
As such, we find that the complaint at hand was properly dismissed
pursuant to 29 C.F.R. � 1614.107(a)(1).
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the Agency's
final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 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
77960, Washington, DC 20013. 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 (Z0610)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
April 19, 2011
__________________
Date
2
0120110579
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120110579