_________________ v. United States Postal Service 05A01065 08-16-02 . _________________, Complainant, v. John E. Potter, Postmaster General, United States Postal Service, Agency. Request No. 05A01065 Appeal No. 01A03298 DECISION ON REQUEST FOR RECONSIDERATION On July 27, 2000, _________________ (hereinafter referred to as complainant) initiated a request to the Equal Employment Opportunity Commission (Commission) to reconsider the decision in _________________ v. William J. Henderson, Postmaster General, United States Postal Service, EEOC Appeal No. 01A03298 (June 27, 2000).<1> EEOC Regulations provide that the Commissioners may, in their discretion, reconsider any previous decision where the party demonstrates that: (1). the previous decision involved a clearly erroneous interpretation of material fact or law; or (2). the decision will have a substantial impact on the policies, practices, or operation of the agency. 29 C.F.R. §1614.405(b). For the reasons that follow, the Commission DENIES complainant's request. ISSUE PRESENTED The issue herein is whether the previous decision properly affirmed the agency's dismissal of the underlying complaint for failure to state a claim. BACKGROUND Complainant filed a formal EEO complaint in February 2000, alleging that she was discriminated against on the bases of her race (black), sex (female), and disability (epicondylitis) when she learned in December 1999, that her supervisor did not submit her workers' compensation papers in a timely manner. The agency dismissed the complaint for failure to state a claim. On appeal, the previous decision affirmed the dismissal, characterizing the issue as a collateral attack on the workers' compensation process. In her request for reconsideration, complainant asserted that the agency consolidated the complaint herein with a subsequent complaint which it had accepted.<2> The agency countered that it consolidated the actions solely for purposes of EEO counseling. ANALYSIS AND FINDINGS As discussed above, the Commission may, in its discretion, reconsider any previous decision when the party requesting reconsideration submits written argument or evidence which tends to establish that any of the criteria of 29 C.F.R. § 1614.405(b) is met. After a careful review of the record herein, the Commission finds that complainant's request does not meet the criteria of 29 C.F.R. § 1614.405(b)(1). Therefore, it is the decision of the Commission to deny complainant's request. The EEOC Regulations provide for the dismissal of a complaint which fails to state a claim within the meaning of 29 C.F.R. § 1614.103. 29 C.F.R. § 1614.107(a). 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. 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. Riden v. Department of the Treasury, EEOC Request No. 05970314 (October 2, 1998). In the case at hand, the issue concerns the processing of complainant's claim with the Office of Workers' Compensation Programs (OWCP). Upon review of the record, we find that the underlying claim constitutes a collateral attack on the OWCP decision making process, and, as such, fails to state a claim. See Reloj v. Department of Veterans Affairs, EEOC Request No. 05960545 (June 15, 1998). The Commission notes that OWCP has exclusive jurisdiction over the administration, interpretation, and enforcement of the Federal Employees Compensation Act (FECA). 20 C.F.R. § 10.1. A review of applicable case law reveals that, in one instance, an employee was allowed to pursue a claim against the agency for allegedly intentionally depriving him of the opportunity to present a disability claim to OWCP when it failed to process his FECA claim for nearly two years. Grichenko v. USPS, 524 F.Supp. 672 (E.D.N.Y. 1981), aff'd without opinion, 751 F.2d 368 (2nd Cir. 1984). Nevertheless, the Circuit Court subsequently clarified that decision, stating that because the employee was deprived of the opportunity to present a claim to OWCP, the conduct in question foreclosed the employee's administrative remedies such that the protections afforded by FECA were not available. Stuto v. Fleishman, 164 F.3d 820 (2nd Cir. 1999). In the case at hand, complainant did not assert that she was prevented from filing a FECA claim, only that her continuation of pay was delayed.<3> As stated, OWCP has exclusive jurisdiction over claims for compensation under FECA. Further, the Commission has no jurisdiction over OWCP with regard to the processing of FECA claims, or decisions to grant or deny benefits. In the case at hand, complainant's request for interest on her FECA award is properly characterized as a request for compensatory damages. Thus, the only matter arguably within the Commission's jurisdiction concerns the relief to which complainant would be entitled. It is noted that the Commission has previously held that a request for interest was sufficient to demonstrate injury for which relief could be provided, such that an issue involving the agency's processing of an OWCP claim stated a claim within the EEOC Regulations. Foster v. USPS, EEOC Appeal No. 01951370 (May 8, 1995), request for reconsideration denied EEOC Request No. 05950693 (May 16, 1996). The Commission, however, has subsequently held that, when an allegation fails to show that a complainant is aggrieved for purposes of the EEOC Regulations, it will not be converted into an actionable claim merely because the complainant has requested a specific relief. Lindsey v. USPS, EEOC Request No. 05980410 (November 4, 1999). We find the rationale set forth in Lindsey to be persuasive in this case. Finally, it is noted that courts have recently held that allegations concerning the processing of paperwork are not independently actionable. See Johnston v. Henderson, 144 F.Supp.2d 1341 (S.D.FL. 2001), aff'd without decision, 277 F.3d 1380 (11th Cir. 2001) (mere allegation of improper processing and delay of FMLA forms insufficient to state a claim). Accordingly it is the decision of the Commission to AFFIRM the final agency decision.<4> STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0701) 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), 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 19848, Washington, D.C. 20036. 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 (S0900) 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 (Z1199) 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: __________________________________ Frances M. Hart, Executive Officer Executive Secretariat _____08-16-02_____________________________ Date CERTIFICATE OF MAILING For timeliness purposes, the Commission will presume that this decision was received within five (5) calendar days of mailing. I certify that the decision was mailed to claimant, claimant's representative (if applicable), and the agency on: _________________________ Date _________________________ 1It is noted that complainant's last name was misspelled in the previous decision. The citation uses the correct spelling. 2Complainant, for the first time in her request for reconsideration, raised reprisal as a basis for the alleged discriminatory action. The Commission has stated that adverse actions need not qualify as “ultimate employment actions” or materially affect the terms and conditions of employment to constitute retaliation. EEOC Compliance Manual, No. 915.003 (May 20, 1998). Instead, the statutory retaliation clauses prohibit any adverse treatment that is based upon a retaliatory motive and is reasonably likely to deter the charging party or others from engaging in protected activity. Id. Nevertheless, we find that the matter at issue does not rise to that level. 3Although it is unclear exactly how long the supervisor delayed in submitting the papers, complainant's statements on appeal indicate that the delay was only for a period of a few weeks. 4The Commission finds no evidence that the action cited herein was part of a pattern or practice of discrimination, or part of a claim of hostile work environment.