0120111714
07-11-2011
Daisy M. DeGout, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service, (Northeast Area), Agency.
Daisy M. DeGout,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service,
(Northeast Area),
Agency.
Appeal No. 0120111714
Agency No. 1B104001010
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated December 20, 2010, dismissing her complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq. and
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 Processor at the Agency’s Processing and Distribution Center
(P&DC) facility in Bronx, NY. On November 27, 2010, Complainant filed a
formal complaint alleging that the Agency subjected her to discrimination
on the bases of her national origin (Dominican), disability (shoulder,
hip, and lower back impaitments), and reprisal for prior protected
EEO activity when management failed to submit her Form CA-1 to Injury
Compensation and the Office of Workers’ Compensation Programs (OWCP)
for approximately 20 months.
The Agency dismissed this claim for failure to state a claim pursuant
to 29 C.F.R. § 1614.107(a)(1).
ANALYSIS AND FINDINGS
The Commission has 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. Dep’t
of the Navy, EEOC Request No. 05970146 (Oct. 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. Dep’t of the Army, EEOC Request No. 05940407 (Sept. 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. Dep’t of Veterans Affairs, EEOC Request No. 05960545 (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. Dep’t of Defense, EEOC
Request No. 05970596 (July 30, 1998); Kleinman v. U.S. Postal Serv.,
EEOC Request No. 05940585 (Sept. 22, 1994); Lingad v. U.S. Postal Serv.,
EEOC Request No. 05930106 (June 25, 1993).
Further, a claim alleging the untimely handling of paperwork with
respect to a complainant’s workers’ compensation claim constitutes
a collateral attack on the OWCP process. See Schneider v. U.S. Postal
Serv., EEOC Appeal No. 01A03298 (Aug. 15, 2002). While the Commission has
retained jurisdiction for allegations that the agency delayed processing
claims because of discriminatory animus, a complainant suffers no harm by
the agency’s alleged discriminatory delay in processing the claim where
the claim is ultimately denied on the merits. See Wade v. U.S. Postal
Serv., EEOC Request No. 05980149 (Feb. 2, 2001).
In the case at hand, Complainant contends on appeal that her supervisor
intentionally withheld submitting a required workers’ compensation
form for a period of twenty months. However, 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.
See Donaven v. Dep’t of Justice, EEOC Appeal No. 0120100795 (June
6, 2011). Complainant’s contentions constitute an impermissible
collateral attack, and therefore do not state a claim. See Schneider,
Appeal No. 01A03298.
Additionally, Complainant’s workers’ compensation claim was
subsequently denied because the facts of the injury were not established.
See Agency’s EEO DRS Inquiry Report, 3. Notwithstanding the significant
length of the alleged delay in processing the paperwork, Complainant
cannot demonstrate actual harm and, therefore, has not stated a claim.
See Wade, Request No. 05980149.
CONCLUSION
Complainant’s contentions constitute an impermissible collateral attack
and have failed to show that she suffered any harm as a result of the
delay. Accordingly, we AFFIRM the Agency’s dismissal for failure to
state a claim.
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
July 11, 2011
__________________
Date
2
0120111714
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
4
0120111714