01A23135_r
08-13-2002
Joan R. Donovan, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Joan R. Donovan v. United States Postal Service
01A23135
August 13, 2002
.
Joan R. Donovan,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A23135
Agency Nos. 4A-070-0067-02, 4A - 070-0270-01
DECISION
Upon review, the Commission finds that complainant's complaint was
properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1) for failure
to state a claim. In consolidated complaints dated March 13, 2002,
and December 10, 2001, complainant alleged that she was subjected to
discrimination on the basis of reprisal for prior EEO activity when:
Management submitted false information regarding complainant's Office
of Workers Compensation Programs (OWCP) claim;
Complainant and other letter carriers at the same facility were told
that their uniforms did not conform to current regulations; and
The Postmaster contacted complainant's physician regarding complainant's
OWCP claim.
On appeal, complainant questions the agency's framing of her claims
inasmuch as she presented additional claims of reprisal that arose in
connection with a prior settlement between the parties that resolved
complainant's prior EEO complaint. We find that complainant's breach
claims were considered on appeal by the Commission in Donovan v. United
States Postal Service, EEOC Appeal No. 01A21707 (May 9, 2002) and are
not at issue in the instant appeal.
The Commission has held that an employee cannot use the EEO complaint
process to lodge a collateral attack on another proceeding. See Wills
v. Department of Defense , EEOC Request No. 05970596 (July 30, 1998). The
proper forum for complainant to raise her challenges to actions which
occurred during the processing of her OWCP claim is in that proceeding
itself. It is inappropriate to now attempt to use the EEO process
to collaterally attack actions which occurred during the processing of
complainant's OWCP claim. We find the agency properly dismissed claims 1
and 3 for failure to state claims pursuant to 29 C.F.R. � 1614.107(a)(1).
The Commission finds that claim 2 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). Nothing in the file indicates
the agency took any adverse employment against complainant after
notifying complainant and other letter carriers that their uniforms were
non-conforming to agency regulations. Therefore, the agency properly
dismissed claim 2 for failure to state a claim pursuant to 29 C.F.R. �
1614.107(a)(1).
Accordingly, the agency's final decision dismissing complainant's
complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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).
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
August 13, 2002
__________________
Date