[Redacted], Pamela W., 1 Complainant,v.Louis DeJoy, Postmaster General, United States Postal Service (Capital Metro Area), Agency.Download PDFEqual Employment Opportunity CommissionJun 3, 2021Appeal No. 2021002142 (E.E.O.C. Jun. 3, 2021) Copy Citation U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Pamela W.,1 Complainant, v. Louis DeJoy, Postmaster General, United States Postal Service (Capital Metro Area), Agency. Appeal No. 2021002142 Agency No. 1K-206-0006-21 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated January 22, 2021, dismissing her complaint alleging unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Mail Processing Clerk, Level 06, at the Agency’s Suburban Maryland Processing and Distribution Center in Gaithersburg, Maryland. On December 19, 2020, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of race (African-American), color (Black), disability, age (69), and reprisal for prior protected EEO activity when, on October 22, 2020, she became aware that management “controverted” her work-related injury and her Office of Workers' Compensation Programs (“OWCP”) case was denied by the Department of Labor (“DOL”). 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. 2021002142 2 In its January 22, 2021 final decision, the Agency dismissed the formal complaint for failure to state a claim under 29 C.F.R. §1614.103 or 1614.106(a). The Agency reasoned the claim was a collateral attack on the OWCP’s adjudicatory proceeding and decision. Complainant filed the instant appeal. The Agency does not provide an appellate response. ANALYSIS AND FINDINGS 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, .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. Dep’t of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994). The regulation set forth at 29 C.F.R. § 1614.107(a)(1) provides, in relevant part, that an agency shall dismiss a complaint that fails to state a claim. Complainant contends she was forced to accept a new position under protest on July 11, 2020, after OWCP terminated her compensation, schedule award, and health benefits awarded for a previous work injury. She then re-injured her hand performing this new position due to repetitive movement of the right hand and wrist. The manager on duty (“Manager”) was made aware, and Manager had the Complainant complete a CA-2 Occupational Disease/Illness form. On August 11, 2020, Complainant filed a CA-1 for the same injury and withdrew the CA-2 asserting her injury happened during her work shift and not afterwards. On October 22, 2020, Complainant became aware her OWCP claim was controverted by Agency management and later denied by OWCP resulting in, among other things, her loss of continuation of pay. She then filed her EEO formal complaint alleging these actions were discriminatory. An employee cannot use the EEO complaint process to lodge a collateral attack on another adjudicatory 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). A claim that can be characterized as a collateral attack, by definition, involves a challenge to another forum's proceeding, such as the grievance process, the workers' compensation process, an internal agency investigation, or state or federal litigation. See Fisher v. Department of Defense, EEOC Request No. 05931059 (July 15, 1994). In the instant case, the claim involves the denial of Complainant’s OWCP claim. Without allegations of other instances of discrimination, this claim falls squarely under OWCP jurisdiction. Thus, the proper forum for Complainant to have raised her concerns is within the OWCP adjudicatory process and not through the administrative EEO complaint process.. See e.g., Pirozzi v. Department of the Navy, EEOC Request No. 05970146 (Oct. 23, 1998); Abiuso v. U.S. Postal Service, EEOC Appeal No. 0120100241 (Oct. 5, 2010). 2021002142 3 Attempting to raise them here is an inappropriate use of the EEO process to lodge a collateral attack on the OWCP process. See Smart v. U.S. Postal Service, EEOC Appeal No. 0120054627 (Nov. 19, 2007) (the Commission found that the complainant's claim that she was not being paid properly for continuation of pay was an impermissible collateral attack on the Department of Labor); Smith v. U.S. Postal Service, EEOC Appeal No. 0120080070 (March 20, 2009) (the Commission affirmed the agency's dismissal of Complainant's claim that the agency refused to process his leave buy back as a collateral attack on the OWCP process); Nobis v. U.S. Postal Serv., EEOC Appeal No. 0120081269 (March 20, 2008) (dismissing a denial of continuation pay claim as a collateral attack and therefore failing to state an actionable claim). The instant formal complaint 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 within these regulations. As such, the Agency correctly dismissed the complaint. CONCLUSION The Agency's final decision dismissing the formal complaint is AFFIRMED for the reasons discussed above. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx 2021002142 4 Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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 (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. 2021002142 5 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 June 3, 2021 Date Copy with citationCopy as parenthetical citation