James D. Scruggs, Complainant,v.William J. Henderson, Postmaster General, United States Postal Service, (S.E./S.W Areas), Agency.

Equal Employment Opportunity CommissionMar 9, 2000
01a00217 (E.E.O.C. Mar. 9, 2000)

01a00217

03-09-2000

James D. Scruggs, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (S.E./S.W Areas), Agency.


James D. Scruggs, )

Complainant, )

)

v. ) Appeal No. 01A00217

) Agency No. 1G-731-0029-99

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

(S.E./S.W Areas), )

Agency. )

____________________________________)

DECISION

On October 8, 1999, complainant filed a timely appeal with this Commission

from a final agency decision (FAD) received by him on September 13, 1999,

pertaining to his 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 the Rehabilitation Act of 1973, as amended,

29 U.S.C. � 791, et seq. <1> In his complaint, complainant alleged that

he was subjected to discrimination on the bases of race (Black) physical

disability (back and shoulder injuries), and mental disability (stress,

anxiety, and depression), when, on May 19, 1999, he received a copy of

erroneous information that was submitted by Human Resources to the Office

of Personnel Management regarding his disability retirement application.

On September 10, 1999, the agency issued a final decision dismissing

the complaint pursuant to EEOC Regulation 1614.107(a), for failure to

state a claim. Specifically, the agency determined that complainant was

not aggrieved when he received the allegedly false information on his

disability retirement application. The agency noted in its decision

that complainant was terminated effective May 6, 1998, but failed to

timely contact an EEO Counselor regarding the matter.

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).

Upon review of the record, we agree with the agency that the complaint

fails to state a claim. Complaint alleges in the instant complaint

that the agency allegedly supplied false information to the Office

of Personnel Management (OPM). If so, complainant must contest the

information submitted to OPM in the OPM process. He cannot obtain a

remedy from the EEO process for the agency's alleged wrongdoing in the

OPM process. Appellant's EEO complaint is essentially a collateral attack

on Office of Personnel Management process, and there is no relief which

can be granted by the agency. See Moreno v. Department of the Treasury,

EEOC Request No. 05940139 (Oct. 28, 1994).

Complainant makes no new contentions on appeal. The agency's decision

dismissing the complaint is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1199)

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). 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).

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S1199)

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:

March 9, 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 of mailing. I certify that

the decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

_______________ __________________________

Date Equal Employment Assistant1On 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.