01996995
10-03-2000
Jane T. Alden, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, (Northeast Area), Agency.
Jane T. Alden v. United States Postal Service
01996995
October 3, 2000
.
Jane T. Alden,
Complainant,
v.
William J. Henderson,
Postmaster General,
United States Postal Service,
(Northeast Area),
Agency.
Appeal No. 01996995
Agency No. 4B-030-0041-99
DECISION
BACKGROUND
Complainant filed a timely appeal with this Commission from a final
agency decision (FAD), dated October 29, 1999, dismissing her complaint
of unlawful employment discrimination in violation of the Rehabilitation
Act of 1973, as amended, 29 U.S.C. � 791, et seq.<1> In her complaint,
complainant alleged that she was discriminated against on the basis
of an unspecified physical disability and in retaliation for prior EEO
activity when:
1) an improper counseling was conducted by the EEO counselor/investigator
in connection with an earlier EEO complainant;
the Acting EEO compliance and appeals coordinator inappropriately
rescinded a final agency decision in her prior EEO complaint and accepted
her complaint for investigation;
3) on or about June 4, 1999, she became aware that an Injury Compensation
Employee revealed confidential information to her supervisor regarding
a settlement amount recovered from an October 1994 on-the-job injury; and
she became aware on or about June 10, 1999 that the agency controverted
her claim for workers' compensation with the Office of Workers'
Compensation Programs (OWCP).
The agency dismissed the complaint in its entirety. It dismissed claims 1
and 2 on the ground that these claims constituted impermissible collateral
attacks on the EEO process. It dismissed claims 3 and 4 on the ground
that they failed to state a claim in that the alleged actions did not
affect a term condition or privilege of employment.
ANALYSIS AND FINDINGS
Claims 1 and 2
We find that the agency properly dismissed these claims. EEOC Regulation
29 C.F.R. � 1614.107(a)(8)), requires that claims such as these that
allege dissatisfaction with the processing of a previously filed
complaint be dismissed. Although dismissal was appropriate here, the
agency is required to forward complainant's concerns to the agency
official responsible for complaint processing. See Equal Employment
Opportunity Management Directive 110 (EEO-MD-110), at 5-14 (as revised,
November 9, 1999). This official must add a record of complainant's
concerns and the agency's actions to resolve the concerns to the complaint
file maintained in the underlying complaint. See EEO-MD-110, at 5-26.
We advise complainant that if the agency fails to informally resolve her
concerns, she may present them to the EEOC either when the underlying
complaint is under the jurisdiction of an EEOC Administrative Judge,
or, if she does not request a hearing on the underlying complaint,
to the EEOC Office of Federal Operations on appeal. See id.
Claim 3
Complainant contends that an agency employee improperly disclosed to her
supervisor information concerning a monetary settlement she had received
in connection with an on-the-job injury. Although the alleged actions may
have violated the Privacy Act, 5 U.S.C. � 552(g)(1), these allegations
do not state a claim within the purview of the federal employment
discrimination laws. The Privacy Act provides an exclusive statutory
framework governing the disclosure of identifiable information contained
in federal systems of records and rests in the United States District
Courts exclusive jurisdiction in matters brought under the provisions
of the Privacy Act. See Frank P. Bucci v. Dept. of Education, EEOC
Request Nos. 05890289, 05890290, 05890291 (April 12, 1989). Therefore,
the agency's decision to reject appellant's allegation concerning a
violation of the Privacy Act, pursuant to 29 C.F.R. � 1614.107(a),
was proper. Accordingly, this claim was properly dismissed.
Claim 4
EEOC Regulations require the dismissal of complaints that fail to state
a claim. See 29 C.F.R.
� 1614.107(a)(1). The Commission has held that a collateral attack
on the OWCP process fails to state a claim. See Conley v. Navy, EEOC
Request No. 05970402 (Feb. 11, 1999); Agustin v. Department of Labor,
EEOC Request No. 05960127 (Dec. 19, 1996) (direct attack on manner in
which OWCP personnel processed an injury claim is a collateral attack).
A challenge to the merits of an OWCP claim, or the agency's action in
representing its interests in the OWCP forum, even by the submission
of allegedly false information, does not state a claim. See Pirozi
v. Department of the Navy, EEOC Request No. 05970146 (Oct. 23,
1998); Ward v. United States Parcel Service, EEOC Request No. 05980036
(Mar. 19, 1998). Here, complainant alleges that the fact that the agency
controverted her claim before OWCP was intentionally discriminatory.
These allegations fail to state a claim and were properly dismissed.
CONCLUSION
For the foregoing reasons, the FAD is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0800)
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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION
(R0400)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court WITHIN NINETY (90) CALENDAR DAYS from the date
that you receive this decision. In the alternative, you may file a
civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. 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
October 3, 2000
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1On 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 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.