U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Lyda F.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Capital Metro Area), Agency. Appeal No. 0120152357 Agency No. 1K302003015 DECISION Complainant filed a timely appeal with this Commission from the Agency's decision dated May 29, 2015, 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. and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq. BACKGROUND At the time of events giving rise to this complaint, Complainant worked as a Mail Processing Clerk at the Agency's Atlanta Processing and Distribution Center (P&DC) in Atlanta, Georgia. On April 29, 2015, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of Age (60) and physical disability (back impairment) when: Agency officials did not assist Complainant with payroll problems associated with a possibly of entitlement to Federal Employee Compensation Act (FECA) benefits. Complainant sustained an upper back and shoulder injury while on the job in February 2014. As a result, she cannot bend, reach above shoulder level, or stand for longer than an hour, and she requires an ergonomic chair. According to Complainant, she should only be working five hours of her scheduled eight hour work days, with the OWCP compensating her for the remaining three hours. A review of the record shows that Complainant only submitted two claims for FECA benefits to the OWCP. The first, a claim for medical payments related to her injury, was granted in November 2014. The second, a request for limited duty status, which Complainant specified meant a reduction in work time from eight to five hour shifts, was denied in December 2014. Complainant reduced her work time by three hours per shift anyway, and the Agency accounted for the difference by applying Complainant's annual and medical leave, and once those were exhausted, LWOP. Complainant alleges that by applying her leave and LWOP, the Agency is preventing her from claiming OWCP compensation as a limited duty employee. Complainant alleges that the Agency officials' failure to "correct" her pay subs, exhausting her leave, and changing her scheduled day off, are a means to "force" her to work her scheduled eight hours. She notes that one Agency official "corrected" two of her pay stubs on December 20, 2015 (likely around the time she was reimbursed for medical expenses by OWCP), but he went on sick leave shortly afterward. On December 27th and 29th 2014 and January 7th, 11th and 12th 2015, Complainant requested assistance from a number of other agency officials, whom she alleges either made erroneous adjustments or would not provide assistance, and one was dismissive when she said she would file an EEO claim on the matter. The Agency dismissed Complainant's claim for failure to state a claim pursuant to 29 CFR § 1614.107(a)(1). Specifically, the Agency found that Complainant failed to show she was an "aggrieved employee" and that her claims amounted to a "collateral attack" on the administrative process for claiming FECA benefits, which are properly brought before the Office of Workers Compensation Programs (OWCP) at the Department of Labor. ANALYSIS AND FINDINGS Under the regulations set forth at 29 C.F.R. Part 1614, an agency shall accept a complaint from an 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. Dep't of the Air Force, EEOC Request No. 05931049 (April 21, 1994). If complainant cannot establish that s/he is aggrieved, the agency shall dismiss a complaint for failure to state a claim. 29 C.F.R. § 1614.107(a)(1). 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 Stales Postal Service, EEOC Request No. 05940585 (September 22, 1994); Linead v. UnUed Slates Postal Service. EEOC Request No. 05930106 (June 25, 1993). A claim that can be characterized as a collateral attack, by definition, involves a challenge to another forum's proceeding, such as the grievance process, the unemployment compensation process, or the workers' compensation process. See, e.g., Fisher v. Dep't of Defense, EEOC Request No. 05931059 (July 15, 1994) (challenge to agency's appeal within the workers' compensation process fails to state a claim as an EEO complaint); Lingad v. USPS EEOC Request No. 05930106 (June 23, 1994) (challenge to evidentiary ruling in grievance process fails lo state a claim as an EEO complaint). Complainant's allegations are based on her assertion that she is entitled to OWCP limited duty compensation. She insists that her complaint is not "with OWCP but with management not making necessary corrections to pay stubs so that [she] can submit them to OWCP for my 3hrs a day pay." (Emphasis added) The record shows that OWCP already determined that Complainant did not qualify for limited duty compensation. To proceed as though she did would be a collateral attack on the OWCP's administrative process. CONCLUSION Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0815) 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 Chap. 9 § VII.B (Aug. 5, 2015). 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 (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden's signature Carlton M. Hadden, Director Office of Federal Operations November 13, 2015 __________________ Date 1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120152357 4 0120152357