Judy T. Burns, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionSep 10, 1999
01987081 (E.E.O.C. Sep. 10, 1999)

01987081

09-10-1999

Judy T. Burns, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Judy T. Burns v. United States Postal Service

01987081

September 10, 1999

Judy T. Burns, )

Appellant, )

)

v. )

) Appeal No. 01987081

William J. Henderson, ) Agency No. 4E-890-0081-98

Postmaster General, )

United States Postal Service, )

Agency. )

______________________________)

DECISION

On September 26, 1998, appellant filed a timely appeal with this

Commission from a final agency decision (FAD), dated August 13,

1998, dismissing appellant's complaint for failure to state a claim.

The Commission accepts the appellant's appeal in accordance with EEOC

Order No. 960, as amended.

Appellant alleged that she was discriminated against on the bases of

race (Caucasian), color (white), sex (female), age (unspecified), and

physical disability (osteo arthritis - hands). The agency defined her

allegation as follows:

On May 1, 1998 appellant became aware the Injury Compensation Office

submitted a form CA-3 to OWCP. OWCP then rendered a decision concerning

her claim by stating that she must accept a job offer by the agency or

forfeit compensation on her claim.

The FAD dismissed appellant's complaint for failure to state a claim,

pursuant to 29 C.F.R. �1614.107(a). Specifically, the agency determined

that the allegation was being adjudicated by the Department of Labor.

The agency stated that the processing of OWCP claims falls under the

jurisdiction of the Department of Labor, and therefore appellant has

failed to state a claim that can be remedied under EEOC Regulations.

On appeal, appellant contends that the agency misdefined her complaint.

The correct issue, according to appellant, is "the intentional

discriminatory act of falsifying official government records involving

[my] Injury case." Therefore, appellant argues, she has stated a claim

within the purview of the EEOC.

EEOC Regulation 29 C.F.R. �1614.107(a) provides, in relevant part, that

an agency shall dismiss a complaint, or portion thereof, 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;

�1614.106(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 21, 1994).

In the instant case, we find that appellant's allegation involves concerns

about the OWCP's administration of workers' compensation benefits,

an issue over which we have no jurisdiction. Appellant's attempt to

challenge the agency's OWCP submissions in the EEO process amounts to an

impermissible collateral attack on matters within the jurisdiction of the

OWCP forum and, as such, fails to state a claim. See Lau v. National

Credit Union, EEOC Request No. 05950037 (March 18, 1996) (allegations

that the agency's submissions to OWCP were false or misleading fail

to state a claim in the EEO process); Seybert v. U.S. Postal Service,

EEOC Request No. 01961704 (November 27, 1996) (allegation that agency

officials provided false and misleading information to the OWCP which led

to an adverse decision by the OWCP failed to state a claim, even though

appellant indicated that he was not challenging the OWCP's decision but

the agency official's alleged actions).

Accordingly, for the above-stated reasons, the Commission AFFIRMS the

agency's dismissal of the appellant's complaint.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0795)

The Commission may, in its discretion, reconsider the decision in this

case if the appellant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. New and material evidence is available that was not readily available

when the previous decision was issued; or

2. The previous decision involved an erroneous interpretation of law,

regulation or material fact, or misapplication of established policy; or

3. The decision is of such exceptional nature as to have substantial

precedential implications.

Requests to reconsider, with supporting arguments or evidence, MUST

BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this

decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive

a timely request to reconsider filed by another party. Any argument in

opposition to the request to reconsider or cross request to reconsider

MUST be submitted to the Commission and to the requesting party

WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request

to reconsider. See 29 C.F.R. �1614.407. All requests and arguments

must bear proof of postmark and 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 filed on the date it is received

by the Commission.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely. If extenuating circumstances

have prevented the timely filing of a request for reconsideration,

a written statement setting forth the circumstances which caused the

delay and 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).

RIGHT TO FILE A CIVIL ACTION (S0993)

It is the position of the Commission that 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.

You should be aware, however, that courts in some jurisdictions have

interpreted the Civil Rights Act of 1991 in a manner suggesting that

a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the

date that you receive this decision. To ensure that your civil action

is considered timely, you are advised to file it WITHIN THIRTY (30)

CALENDAR DAYS from the date that you receive this decision or to consult

an attorney concerning the applicable time period in the jurisdiction

in which your action would be filed. 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 (Z1092)

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:

September 10, 1999

__________________________________

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations