0120091054
05-12-2009
Jacqueline R. Manuel, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Jacqueline R. Manuel,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 0120091054
Agency No. 4G770039908
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated December 11, 2008, 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.
In a complaint dated November 10, 2008, complainant alleged that she was
subjected to discrimination on the basis of reprisal for prior protected
EEO activity under Title VII of the Civil Rights Act of 1964 when, on
August 29, 2008, she received a letter from the agency indicating it could
not pursue her third-party claim. The agency dismissed the complaint,
pursuant to 29 C.F.R. � 1614.107(a)(1), for failure to state a claim.
The instant appeal followed.
At the time of the events at issue, complainant was employed by the
agency as a Rural Carrier Associate/Services Regular Route at its
facility in Pearland, Texas. The record indicates that complainant
was in a work-related vehicle accident on December 3, 2005, in which
she sustained multiple injuries. Complainant was informed of her right
to submit a claim for damages resulting from the accident, including
medical bills, personal property loss and damages for pain and suffering.
She was also notified that she could retain a private attorney to pursue
her claim or could assign her claim to the agency's Injury Compensation
Office for action.
The record shows that complainant originally retained a private attorney
to pursue her claim. Complainant signed an agreement with her attorney
that her claim would be closed without recovery if a settlement was not
made before the 2-year statute of limitations expired on or about December
3, 2007. On November 20, 2007, complainant's attorney closed out her
case without filing suit and there was no settlement agreement. At the
time, he informed her in writing of the December 3, 2007 expiration of
the statute of limitation on her claim. Shortly thereafter, complainant
submitted a request to the agency to assign her case to the agency's
Injury Compensation Office to pursue her claim prior to the expiration
of the statute of limitations. However, she received a letter from
the agency denying action on her claim because the date her request
was received by the agency "did not allow [it] the time to provide the
attention and/or expertise necessary to pursue [complainant's] claim
before the 2 year statute expired." Complainant filed her EEO complaint
alleging the denial resulted from unlawful retaliation against her for
prior EEO activity.
On appeal, complainant concedes she elected to use a private attorney
to pursue her claim and signed an agreement with that attorney that
acknowledged that her claim would be closed without recovery if no
settlement was reached within the 2-year statute of limitations period.
She states she was unable to find another private attorney to pursue
her claim once her attorney closed her case. She also submitted numerous
documents related to her injury claim.
The Commission finds that the complaint fails 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). The essence of complainant's
claim constitutes a collateral attack on the workers' compensation
program which is beyond the purview of the EEO complaints system.
Claims concerning third party liability for an on-the-job injury are
properly brought forward as individual civil actions and this complaint
concerns only what entity would pursue the claim in that civil action.
Under the facts of this case, dismissal for failure to state a claim is
appropriate.
Accordingly, the agency's final decision dismissing complainant's
complaint is affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 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 (S0408)
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 (Z1008)
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
May 12, 2009
__________________
Date
2
0120091054
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
3
0120091054