Jeffrey Fleming, Complainant,v.Patrick R. Donahoe, Postmaster General, United States Postal Service (Northeast Area), Agency.

Equal Employment Opportunity CommissionMar 9, 2012
0120120083 (E.E.O.C. Mar. 9, 2012)

0120120083

03-09-2012

Jeffrey Fleming, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Northeast Area), Agency.




Jeffrey Fleming,

Complainant,

v.

Patrick R. Donahoe,

Postmaster General,

United States Postal Service

(Northeast Area),

Agency.

Appeal No. 0120120083

Agency No. 4B020007211

DECISION

Complainant filed a timely appeal with this Commission from the

Agency's decision dated August 25, 2011, dismissing his complaint of

unlawful employment discrimination in violation of 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 was on

disability retirement from the Agency’s Lawrence Post Office facility

in Massachusetts.

On July 28, 2011, Complainant filed a formal EEO complaint alleging that

the Agency subjected him to discrimination on the basis of disability when

he received a letter from the Agency’s Injury Compensation Office,

in response to a letter from Complainant concerning his worker’s

compensation claim, stating that there was nothing they could do because

the Department of Labor, Office of Worker’s Compensation Program

(OWCP) had denied his claim and the matter was considered closed.

Complainant felt there was fraud in relation to his OWCP 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.

ANALYSIS AND FINDINGS

The Commission has held that an employee cannot use the EEO complaint

process to lodge a collateral attack on another proceeding. See Wills

v. Dep’t of Def., 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). The proper forum for Complainant to have raised his challenges

to actions which occurred during the OWCP proceeding concerning his

worker’s compensation claim is within that proceeding itself. It is

inappropriate to now attempt to use the EEO process to collaterally

attack actions which involving OWCP claims.

The Commission finds that the complaint fails to state a claim under the

EEOC regulations because Complainant failed to show that he suffered harm

or loss with respect to a term, condition, or privilege of employment

for which there is a remedy. See Diaz v. Dep’t of the Air Force,

EEOC Request No. 05931049 (April 21, 1994).

Accordingly, the Agency's final decision dismissing Complainant's

complaint is AFFIRMED.

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

March 9, 2012

__________________

Date

2

0120120083

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

2

0120120083