[Redacted], Melodee M., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency.Download PDFEqual Employment Opportunity CommissionOct 12, 2022Appeal No. 2022001269 (E.E.O.C. Oct. 12, 2022) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Melodee M.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Field Areas and Regions), Agency. Request No. 2022003014 Appeal No. 2022001269 Agency No. 4B-070-0296-21 DECISION ON REQUEST FOR RECONSIDERATION Complainant timely requested that the Equal Employment Opportunity Commission (EEOC or Commission) reconsider its decision in EEOC Appeal No. 2022001269 (April 6, 2022). EEOC Regulations provide that the Commission may, in its discretion, grant a request to reconsider any previous Commission decision issued pursuant to 29 C.F.R. § 1614.405(a), where the requesting party demonstrates 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. See 29 C.F.R. § 1614.405(c). At the time of events giving rise to this complaint, Complainant worked as a Supervisor, Customer Service at the Agency’s Florham Park, New Jersey, Post Office. On November 16, 2021, Complainant filed an EEO complaint alleging that she was subjected to discrimination when, on or around July 16, 2021, she became aware management, in response to her claim for workers’ compensation benefits for a work-related injury, had informed the Office of Workers’ Compensation Programs (OWCP) that she had worked outside her restrictions. 1 This case has been randomly assigned a pseudonym which will replace Complainant’s name when the decision is published to non-parties and the Commission’s website. 2022003014 2 The Agency issued a final decision, dismissing the complaint pursuant to 29 C.F.R. § 1614.107(a)(1) for failure to state a claim as a collateral attack on the Department of Labor’s OWCP adjudicatory process. In EEOC Appeal No. 2022001269, we affirmed the Agency’s final decision, finding that the disputed action raised in Complainant’s EEO complaint was directly related to an adjudicatory decision by OWCP on her workers’ compensation claim and constituted a collateral attack. On request for reconsideration, Complainant contends that the appellate decision erred by stating that the bases for her complaint were race (Asian) and sex (female) when the only basis she checked on her formal complaint form was reprisal. According to Complainant, this was not harmless error because, in a retaliation complaint, a complainant only needs to establish that the alleged discriminatory action is reasonably likely to deter protected activity. Complainant asserts that she is not attempting to lodge a collateral attack on the OWCP process but instead alleging that management provided false information about her to OWCP with the purpose of retaliating against her because she had engaged in protected EEO activity. Upon review, we agree with Complainant that the Agency’s final decision and our appellate decision erred in stating that the bases for the complaint were race and sex. Although the record reflects that Complainant raised multiple bases with the EEO counselor, including race and sex, the only basis selected on her formal complaint form was “Retaliation,” and she stated in the narrative accompanying her complaint that the management official provided the false information to OWCP in retaliation for Complainant’s prior protected EEO activity. However, we find that mischaracterizing the bases for Complainant’s EEO complaint amounted to harmless error. Here, Complainant is alleging that a management official provided false information about the circumstances of her workplace injury to OWCP regarding her pending OWCP claim. Claims concerning submission of paperwork to OWCP generally constitute a collateral attack on the OWCP process and fail to state a claim in the EEO process. See Pirozzi v. Dep’t of the Navy, EEOC Request No. 05970146 (Oct. 23, 1998) (allegedly false statements made by agency to OWCP during processing of a workers’ compensation claim goes to the merits of compensation claim); Hogan v. Dep’t of the Army, EEOC Request No. 05940407 (Sept. 29, 1994) (reviewing a claim that agency officials provided misleading statements to OWCP would require the Commission to essentially determine what workers’ compensation benefits the complainant would likely have received); Reloj v. Dep’t of Vet. Affs., EEOC Request No. 05960545 (June 15, 1998) (claim that agency's providing false information to the OWCP resulted in denial of benefits is a collateral attack on OWCP’s decision and, thus, fails to state a claim). OWCP has exclusive jurisdiction over the administration, interpretation, and enforcement of the Federal Employees Compensation Act. Melissa M. v. Smithsonian Institution, EEOC Appeal No. 0120170287 (Feb. 28, 2017) (citing Schneider v. U.S. Postal Serv., EEOC Request No. 05A01065 (Aug. 15, 2002)). Because this claim does not fall within the Commission’s jurisdiction, it cannot state a claim of discrimination under our regulations, including a claim of discrimination based on reprisal. 2022003014 3 We emphasize that a request for reconsideration is not a second appeal to the Commission. See Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Ch. 9, § VII.A (Aug. 5, 2015); see, e.g., Lopez v. Dep’t of Agric., EEOC Request No. 0520070736 (Aug. 20, 2007). Rather, a reconsideration request is an opportunity to demonstrate that the appellate decision involved a clearly erroneous interpretation of material fact or law or will have a substantial impact on the policies, practices, or operations of the Agency. Complainant has not done so here. After reviewing the previous decision and the entire record, the Commission finds that the request fails to meet the criteria of 29 C.F.R. § 1614.405(c), and it is the decision of the Commission to DENY the request. The decision in EEOC Appeal No. 2022001269 remains the Commission's decision. There is no further right of administrative appeal on the decision of the Commission on this request. COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (P0610) This decision of the Commission is final, and there is no further right of administrative appeal from the Commission’s decision. 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. RIGHT TO REQUEST COUNSEL (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. 2022003014 4 Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations October 12, 2022 Date Copy with citationCopy as parenthetical citation