U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Sunday S.,1 Complainant, v. Megan J. Brennan, Postmaster General, United States Postal Service (Southern Area), Agency. Appeal No. 0120181670 Agency No. 4G-770-0069-17 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated April 4, 2018, 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. The Commission accepts the appeal in accordance with 29 C.F.R. § 1614.405. BACKGROUND During the relevant time, Complainant worked as a City Letter Carrier at the Agency's North Shepherd Station facility in Houston, Texas. Believing that she was subjected to discrimination based on disability and in reprisal for prior protected EEO activity, Complainant filed a complaint on March 14, 2018.2 The Agency, in its decision, framed the claim as follows: On or about December 13, 2016, Complainant became aware that her OWCP claim for back pay, for September 13, 2016 through November 2, 2016, was denied. The Agency dismissed the complaint on the grounds that it was a collateral attack on the OWCP process, and therefore failed to state a claim. The Agency reasoned that Complainant alleged her OWCP claims were denied based on false information provided by a Human Resources official (hereinafter "HR Specialist"). Citing prior Commission decisions, the Agency concluded that alleging that false statements were made by an agency goes to the merits of a compensation claim, which is under the Department of Labor's jurisdiction. Complainant filed the instant appeal. ANALYSIS AND FINDINGS On appeal, Complainant explains that HR Specialist thought she did not appear to have a disability and did not find her work within her restrictions for several months. After Complainant began working again, she filed for compensation with OWCP to cover the time she was off. She needed the Agency to show that no work was available and that she did not turn down work. Instead, HR Specialist informed OWP that Complainant refused work. Although Complainant argues that her complaint "is NOT about money owed to me by OWCP" but rather, the Agency "not being held accountable for the discrimination", the essence of the complaint concern the Agency's improper statements in the processing of her OWCP claim. The Commission has held that an employee cannot use the EEO complaint process to lodge a collateral attack on another proceeding. See Wills v. Dep't of Def., EEOC Request No. 05970596 (July 30, 1998); Kleinman v. U.S. Postal Serv., EEOC Request No. 05940585 (Sept. 22, 1994); Lingad v. U.S. Postal Serv., EEOC Request No. 05930106 (June 25, 1993). The proper forum for Complainant to have raised her challenges to actions which occurred during the OWCP proceeding was at that proceeding itself as any remedial relief available to her would be through the OWCP process. We have previously held, that where a complainant claims that the agency discriminated in a manner pertaining to the merits of the workers' compensation claims, for example, by submitting paperwork containing allegedly false information, then the complaint does not state an EEO claim. Pirozzi v. Department of the Navy, EEOC Request No. 05970146 (October 23, 1998)(allegedly false statements made by agency to OWCP during OWCP's processing of a workers' compensation claim goes to the merits of compensation claim); Hogan v. Department of the Army, EEOC Request No. 05940407 (September 29, 1994) (reviewing a claim that agency officials provided misleading statements to OWCP would require the Commission to essentially determine what workers' compensation benefits the complainant would likely have received); Reloj v. Department of Veterans Affairs, EEOC Request No. 05960545 (June 15, 1998)(claim that agency's providing false information to the OWCP resulted in denial of benefits is a collateral attack on OWCP's decision and, thus, fails to state a claim). Accordingly, the Commission agrees with the agency that claim (1) fails to state claim. CONCLUSION Accordingly, the Agency's dismissal of the complaint was proper and is hereby AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0617) 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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. 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. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). 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 August 16, 2018 __________________ 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 The record reflects that in a prior appeal, the Commission found that a settlement agreement executed by the parties was void for lack of consideration. See Complainant v. United States Postal Service, EEOC Appeal No. 0120172586 (February 8, 2018). The underlying complaint was reinstated and the matter was remanded to the Agency. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 0120181670 4 0120181670