Thomas J. Bartholomew, Appellant,v.William J. Henderson, Postmaster General, United States Postal Service, Agency.

Equal Employment Opportunity CommissionJan 20, 1999
01974545_r (E.E.O.C. Jan. 20, 1999)

01974545_r

01-20-1999

Thomas J. Bartholomew, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.


Thomas J. Bartholomew, )

Appellant, )

)

v. ) Appeal No. 01974545

) Agency No. 1C-151-0016-97

William J. Henderson, )

Postmaster General, )

United States Postal Service, )

Agency. )

______________________________)

DECISION

On May 16, 1997, appellant filed a timely appeal with this Commission

from a final agency decision (FAD) received by him on April 28, 1997,

pertaining to his complaint of unlawful employment discrimination in

violation of Title VII of the Civil Rights Act of 1964, as amended,

42 U.S.C. �2000e et seq., the Age Discrimination in Employment Act

of 1967 (ADEA), as amended, 29 U.S.C. �621 et seq., and �501 of the

Rehabilitation Act of 1973, as amended, 29 U.S.C. �791 et seq. In his

complaint, appellant alleged that he was subjected to discrimination on

the bases of race (Caucasian), sex (male), age (DOB 2/7/49), and physical

disability (work-related injury) when �from 1993 to September 23, 1996,

agency management and the Injury Compensation Programs supervisors have

breached and have implemented premeditated fraudulent acts of conspiring

to deny appellant the right to exercise in the proper manner his rights

to the U.S. Federal Employee's Compensation Act, Title V, U.S.C. �8101

et seq. (USFEC Act), and all other applicable statutes and regulations

prescribed by the U.S. Secretary of Labor.�

The agency dismissed appellant's complaint pursuant to EEOC Regulation

29 U.S.C. �1614.107(a), for failure to state a claim. Specifically,

the agency determined that appellant failed to show harm to the terms,

conditions, or privileges of his employment as a result of the agency's

action, and was, therefore, not aggrieved.

EEOC Regulation 29 C.F.R. �1614.107(a) provides that an agency may dismiss

a complaint which 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 information appellant provided for pre-complaint counseling,

appellant alleged that the agency �condoned or implemented the illegal and

erroneous practice of supervisor's (sic) making out and filing fraudulent

compensation claim forms to deny [appellant's right to due process under

the USFEC Act]. We find that appellant's complaint is a collateral

attack on the Office of Workers' Compensation Programs (OWCP) process.

The Commission has held that an employee cannot use the EEO complaint

process to lodge a collateral attack on another proceeding. Kleinman v.

USPS, EEOC Request No. 05940585 (September 22, 1994); Lingad v.

USPS, EEOC Request No. 05930106 (June 24, 1993). The proper forum for

appellant to have raised his challenges to actions which occurred during

the processing of his OWCP claims was at those proceedings themselves.

It is inappropriate to now attempt to use the EEO process to collaterally

attack actions which occurred during the processing of his OWCP claims.

Accordingly, we find that appellant's complaint fails to state a claim,

and, therefore, the agency's final decision is AFFIRMED for the reasons

set forth herein.

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:

Jan. 20, 1999

____________________________

DATE Ronnie Blumenthal, Director

Office of Federal Operations