01982949
03-05-1999
Marion Ware, Appellant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency.
Marion Ware v. United States Postal Service
01982949
March 5, 1999
Marion Ware, )
Appellant, )
)
v. ) Appeal No. 01982949
) Agency No. 4G770066197
William J. Henderson, )
Postmaster General, )
United States Postal Service, )
Agency. )
)
DECISION
Appellant filed an appeal with this Commission from a final agency
decision (FAD) concerning her complaint of unlawful employment
discrimination in violation of Rehabilitation Act of 1973, as amended,
29 U.S.C. �791 et seq. The final agency decision was dated January
27, 1998. The appeal was postmarked February 26, 1998. Accordingly,
the appeal is timely (see, 29 C.F.R. �1614.402(a)), and is accepted in
accordance with EEOC Order No. 960, as amended.
The record indicates that on August 8, 1997, appellant initiated contact
with an EEO Counselor regarding her complaint. Informal efforts to
resolve her concerns were unsuccessful. On October 29, 1997, appellant
filed a formal complaint, alleging that she was the victim of unlawful
employment discrimination on the basis of her physical disability
(unspecified) when (1) on July 22, 1997, appellant was informed by
the Injury Compensation Specialist that there was a problem with her
documentation; and (2)she has not been paid for her on-the-job injury.
On January 27, 1998, the agency issued a final decision dismissing
appellant's complaint for failure to state a claim. Specifically, the
agency found that the appellant's complaint was a collateral attack
on the OWCP forum and, as such, failed to state a claim under 29
C.F.R. �1614.107(a).
On appeal, appellant argues that her complaint is not a collateral
attack but rather a complaint alleging discrimination on the basis of
disability and reprisal for EEO activity when OWCP improperly processed
her complaint.
EEOC Regulations EEOC Regulation 29 C.F.R. �1614.107(a) provides,
in relevant part, that an agency shall dismiss a complaint, or portion
thereof, 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; �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).
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). A collateral attack involves
a challenge to another forum's proceeding, i.e., the grievance process,
the EEO process in a separate case, the unemployment compensation process,
the workers' compensation process, the tort claims process, and so
forth. See Story v. U.S. Postal Service, EEOC Request No. 05960314
(October 18, 1996); Fisher v. Department of Defense, EEOC Request
No. 05931059 (July 15, 1994). In the case at hand, appellant appears
to be challenging the decisions of the OWCP and the manner in which
determinations were made by OWCP. Such assertions are tantamount to a
collateral attack on OWCP's decisions and appellant may not use the EEO
process to collaterally attack those actions.
CONCLUSION
Accordingly, the agency's decision to dismiss appellant's complaint for
failure to state a claim was proper and is AFFIRMED.
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:
March 5, 1999 Ronnie Blumenthal
DATE Director
Office of Federal Operations