0120102158
08-12-2010
Valerie L. Price, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, (Southeast Area), Agency.
Valerie L. Price,
Complainant,
v.
John E. Potter,
Postmaster General,
United States Postal Service,
(Southeast Area),
Agency.
Appeal No. 0120102158
Agency No. 4H300011810
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated April 1, 2010, dismissing her complaint of unlawful employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
ISSUE PRESENTED
Whether the Agency properly dismissed Complainant's complaint on the grounds that it failed to state a claim.
BACKGROUND
In her complaint, Complainant alleged that the Agency subjected her to discrimination on the bases of disability and in reprisal for prior protected EEO activity when:
1. On January 15, 2010, her Office of Workers' Compensation Programs (OWCP) claim was denied, which resulted in her Continuation of Pay (COP) being changed to leave; and
2. On or about February 19, 2010, Complainant was required to provide medical documentation.
In its final decision, the Agency dismissed Complainant's complaint on the grounds that it was a collateral attack on the OWCP process and therefore failed to state a claim.
CONTENTIONS ON APPEAL
On appeal, Complainant argues that the Agency improperly dismissed her complaint because it "overlooked the strong indication of a hostile work environment by incident of November 30, 2009." Complainant's Brief, p. 1. Complainant maintains that on November 30, 2009, a customer assaulted her, and management failed to take immediate and appropriate action to respond to the incident. The Agency requests that we affirm its final decision.
ANALYSIS AND FINDINGS
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. 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. Department of the Air Force, EEOC Request No. 05931049 (April 21, 1994).
As an initial matter, we note that on appeal, Complainant contends that the Agency failed to acknowledge her claim that she was subjected to a hostile work environment when a customer assaulted her on November 30, 2009. A review of the record reveals that in her formal complaint, Complainant did not explain the specific actions that constituted her complaint. Instead, Complainant noted that her discrimination claims were identified in a Notice of Right to File dated February 19, 2010. In the February 19, 2010 Notice of Right to File, the Agency's EEO office stated that Complainant claimed that she was subjected to unlawful discrimination when on January 9, 2010, she received a letter denying her OWCP claim; the supervisor changed her annual leave in lieu of sick leave; and, the Agency instructed Complainant to provide a Form 3971 and medical documentation for every call-in.
Contrary to Complainant's appellate contentions, the Notice of Right to File incorporated by reference into Complainant's formal complaint does not contain a hostile work environment claim or mention the November 2009 assault. Complainant expressly affirmed in her formal complaint that the Agency correctly articulated her claims in its Notice of Right to File. Thus, we find that the Agency properly framed Complainant's complaint as articulated in the above claims.
As such, we determine that Complainant's complaint, which we view for the most part as essentially stating one claim, alleges that the Agency discriminated against her when OWCP denied her workers' compensation claim, which resulted in the Agency charging her with leave and requesting medical documentation to support her continued absence. 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); Kleinman v. United States Postal Service, EEOC Request No. 05940585 (September 22, 1994); Linead v. United States Postal Service, EEOC Request No. 05930106 (June 25, 1993). The proper forum for Complainant to have raised her challenges to the denial of her OWCP claim was at that proceeding itself. Consequently, we find that the Agency properly dismissed Complainant's complaint.
CONCLUSION
The Commission AFFIRMS the Agency's final decision for the reasons set forth in this decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 77960, Washington, DC 20013. 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 (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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
_____8/12/10_____________
Date
2
0120102158
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120102158