0120081138
03-20-2008
Carol McCurry, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Carol McCurry,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120081138
Agency No. 4F940017307
DECISION
Complainant filed a timely appeal with this Commission from the agency's
final decision, dated December 3, 2007, dismissing her complaint of
unlawful employment discrimination claiming a violation of Section 501
of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq. Upon review, the Commission finds that
complainant's complaint was properly dismissed pursuant to 29 C.F.R. �
1614.107(a)(1) and (2) for failure to state a claim and untimely EEO
counselor contact.
In a complaint dated November 13, 2007, complainant alleged that she
was subjected to discrimination on the basis of disability (on-the-job
injury) when the agency: (1) purportedly mishandled the processing of
her leave record by charging her for approximately 33 hours of sick and
annual leave for the period of January 20 through February 16, 2007,
instead of Leave Without Pay (LWOP) as she requested; and (2) she did
not receive certain identified Office of Worker's Compensation Programs
(OWCP) compensation benefits to which she believed she was entitled.
The Commission finds the agency's dismissal for untimely EEO
Counselor contact involving complainant's leave record to be proper.
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of
discrimination should be brought to the attention of the Equal Employment
Opportunity Counselor within forty-five (45) days of the date of the
matter alleged to be discriminatory or, in the case of a personnel
action, within forty-five (45) days of the effective date of the action.
The record indicates that complainant first contacted an EEO counselor
regarding the leave matter on September 19, 2007, which was approximately
seven months after she received her earnings statement for the pay period
in questions, and well beyond the 45-day limitation period. Therefore,
the agency was correct in dismissing this claim on timeliness grounds.
The Commission further finds that complainant's allegations regarding
the processing of her OWCP benefits fail to state a claim under the EEOC
regulations because complainant failed to show that she suffered harm or
loss with respect to a term, condition, or privilege of employment for
which there is a remedy. See Diaz v. Department of the Air Force, EEOC
Request No. 05931049 (April 21, 1994). Complainant's claim constitutes
a collateral attack on the OWCP process. The Commission has held that an
employee cannot use the EEO complaint process 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). Moreover,
the Commission has held that, without more, claims concerning a delay
in submitting paperwork to OWCP, or submitting incomplete or faulty
paperwork, constitute a collateral attack on the OWCP process. See
Schneider v. USPS, EEOC Request No. 05A01065 (August 15, 2002). The
proper forum for complainant to have raised her challenges to actions
which occurred in the processing of her injury claim was during the OWCP
process itself.
Accordingly, the agency's final decision dismissing complainant's
complaint 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
March 20, 2008
_______________________
Date
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0120081138
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
4
0120081138