01A05136_r
10-11-2001
Sandra Y. Van Sickle, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency.
Sandra Y. Van Sickle v. United States Postal Service
01A05136
October 11, 2001
.
Sandra Y. Van Sickle,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
Agency.
Appeal No. 01A05136
Agency No. 4-H-335-0190-00
DECISION
Complainant filed a timely appeal with this Commission from an agency
decision dated June 19, 2000, dismissing her complaint of unlawful
employment discrimination. In her complaint, complainant alleged that
she was subjected to discrimination on the bases of race, color, sex,
national origin, age, and disability when:
On an unspecified date she was denied a position with the agency in
Florida; and
On an unspecified date her therapy for a job-related injury was
terminated.
The agency dismissed claim (1) for untimely EEO contact, and claim
(2) for failure to state a claim. Specifically, the agency determined
that, although the date for claim (1) was unspecified, complainant's
request for employment was denied by notice dated July 29, 1993, and
her EEO Counselor contact was not initiated until March 28, 2000, well
beyond the regulatory time limits. For claim (2), the agency found that
complainant's claim concerned the termination of her Office of Workers'
Compensation Program (OWCP) authorized therapy, which failed to state
a claim under the EEO process.
Upon review, we find that complainant's claims were properly dismissed
pursuant to 29 C.F.R. � 1614.107(a)(1) and (2). The record indicates
that complainant received denial of her request for employment by letter
dated July 29, 1993. As complainant did not contact an EEO Counselor
until March 28, 2000, claim (1) was clearly untimely. As complainant
has otherwise offered no evidence to indicate that the time limit for
her claim should be extended, the agency properly dismissed (1) pursuant
to 29 C.F.R. � 1614.107(a)(2). With regard to claim (2), the record
shows that complainant's claim relates to the termination of her therapy
authorized under proceedings of the OWCP. 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 have raised her challenge to the termination of her therapy was with
the OWCP itself. As such, claim (2) was properly dismissed pursuant to
29 C.F.R. � 1614.107(a)(1).
Accordingly, the agency's 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
October 11, 2001
__________________
Date