0120120608
10-24-2012
Brenda J. Palmer, Complainant, v. Patrick R. Donahoe, Postmaster General, United States Postal Service (Pacific Area), Agency.
Brenda J. Palmer,
Complainant,
v.
Patrick R. Donahoe,
Postmaster General,
United States Postal Service
(Pacific Area),
Agency.
Appeal No. 0120120608
Agency No. 1F957005411
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision (Dismissal) dated October 11, 2011, dismissing her complaint of 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Maintenance Support Clerk at the Agency's Processing and Distribution Center facility in Sacramento, California. On September 23, 2011, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the basis of race (African-American) when:
1. 1In April 2011, Complainant was forced to take 10 units of leave and charged as late;
2. On June 24, 2011, Complainant was charged annual leave when she had requested leave without pay (LWOP);
3. On July 5, 2011, Complainant found derogatory remarks from her supervisor (S) on Complainant's CA-l Worker's Compensation Form;
4. Complainant's husband's July 10, 2011 sick leave request was charged to annual leave;
5. Complainant's request for 2 hours of LWOP on July 11, 2011 was charged to sick leave;
6. On July 25, 2011, Complainant received a letter from the Department of Labor (DOL) asking about a statement by S that was attributed to a co-worker; and
7. On an unspecified date, Complainant's work space was moved from one location in the tool and parts room to another location in the tool and parts room.
The Agency dismissed the claims on various grounds. With regard to claims 1 and 2, the Agency dismissed them for untimely EEO Counselor contact. With regard to claims 3, 5, and 6, the Agency dismissed the claims for failure to state a claim on the grounds that the claims constituted a collateral attack on the Worker's Compensation claims process. With regard to claims 4 and 7, the Agency again found that the claims failed to state a claim because Complainant was not aggrieved by the alleged actions.
CONTENTIONS ON APPEAL
Complainant states on appeal that the Agency misconstrued her claims and that she was only alleging claim 3, when S allegedly put derogatory remarks on her CA-l Worker's Compensation Form. Complainant maintains that the remaining incidents were intended merely as background evidence to support claim 3. The Agency requests that we affirm its Dismissal.
ANALYSIS AND FINDINGS
Because Complainant has clarified her claim and explained that all claims except claim 3 were merely intended to be considered as background evidence to support claim 3, not individual claims in-and-of themselves, we need not address the Agency's dismissal of these other claims. With regard to claim 3, Complainant has submitted a copy of the CA-l Worker's Compensation Form showing comments made by S wherein S casts doubts on Complainant's Worker's Compensation claim presented to the Department of Labor's Office of Worker's Compensation Programs (OWCP). We note, however, that 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); Lingad v. United States Postal Service, EEOC Request No. 05930106 (June 25, 1993). The proper forum for complainant to raise her challenges to S's comments is within the proceedings provided for under the OWCP, not within the EEO complaint process. Because claim 3 consists of a collateral attack against the OWCP proceeding, we find that Complainant fails to state a claim.
CONCLUSION
The Dismissal is AFFIRMED.
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
October 24, 2012
__________________
Date
1 The Dismissal listed the claims in a different order.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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