Irish M.,1 Complainant,v.Dr. Heather A. Wilson, Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity Commission

Jul 6, 2017

0520170223 (E.E.O.C. Jul. 6, 2017)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013

Irish M.,1
Complainant,

v.

Dr. Heather A. Wilson,
Secretary,
Department of the Air Force,
Agency.

Request No. 0520170223

Appeal No. 0120162628

Agency No. 9R1M16051

DECISION ON REQUEST FOR RECONSIDERATION

Complainant timely requested reconsideration of the decision in EEOC Appeal No. 0120162628
(January 24, 2017). EEOC Regulations provide that the Commission may, in its discretion, grant
a request to reconsider any previous Commission decision where the requesting party
demonstrates 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. See 29 C.F.R. § 1614.405(c).

In the underlying complaint, Complainant alleged that the Agency subjected her to
discrimination on the bases of sex (female), race (African-American), and disability (physical
and mental - bilateral arm nerve damage, root nerve damage to cervical spine and Post Traumatic
Stress Disorder) when: (1) on January 16, 2015, her first line supervisor (S1), an Aircraft
Overhaul Supervisor, denied her a continuation of pay (COP) and denied her the CA-7 form to
claim wage loss compensation after the COP period; (2) on January 21, 2015, S1 requested that
she commit fraud by telling Occupational Medicine Services (OMS) that she was injured in the
tank instead of while removing the wing from a C-120 aircraft as a result of her team following
improper procedures; (3) on January 22, 2015, S1 denied her reasonable accommodations when
he required her to report to work while she was under medication and on driving restrictions; (4)

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.
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on or about January 27, 2015, and as recently as March 14, 2016, her management chain (the
Safety and Occupational Health Specialist (S3) and the Chief of Safety (S4)) refused to provide
her with a copy of the “Supervisor’s Mishap Report,” with complete information, including
signatures, in order for her to secure workers’ compensation benefits and appropriate medical
care; (5) from January 27, 2015, through April 22, 2015, her repeated requests for CA-1 and CA-
17 forms, which were necessary to secure rehabilitation, were denied and she was purposefully
misinformed as to the correct procedures that should have been followed after a work place
injury; (6) on January 30, 2015, the Human Resources Supervisor (HI) strong-armed and
manipulated her into signing a fraudulent CA-1 form dated January 27, 2015, but did not submit
the CA-1 form until February 25, 2015; (7) on February 6, 2015, S1 denied her reasonable
accommodation when he required her to move from an office on the first floor to the second
floor, even though she was taking muscle relaxants and was restricted from climbing stairs; (8)
on May 8, 2015, S1 denied her reasonable accommodation due to her light duty restrictions when
he stated that due to her condition, it was mandatory she work 10 hours a day, which contributed
to her injuries because it did not give her a chance to heal; (9) on or about January 25, 2016, she
became aware that management deliberately withheld information that would ensure her speedy
recovery by not informing her that she could file a workers’ compensation claim; (10) on
January 25, 2016, she became aware that the initial incident report documenting her January 15,
2015 on the job injury did not contain an accurate description of the incident and her injuries;
(11) on or about February 18, 2016, she became aware she was misinformed by HI that she
should have completed items 1-15 of the CA-1 Form and not HI, which delayed her medical care
because he minimized the severity of the accident and her injuries; (12) on February 18, 2016,
she became aware that HI submitted a fraudulent CA-1 form to Workers’ Compensation, without
her signature on January 27, 2016; (13) on February 24, 2016, she was administered an injection
by her treating Occupational Medical Physician (OMP) at the Agency’s on-site clinic without
undergoing an x-ray or Magnetic Resonance Imaging (MRI) beforehand, causing her further
injury; and (14) on March 3, 2016, she was administered an injection by the same OMP without
an x-ray or MRI and without the proper amount of time-lapse between previous injections, also
resulting in further injury.

Our previous decision affirmed the Agency’s dismissal of all claims. Specifically, we concluded
that Claims 1-6 and 9-12 failed to state a claim in accordance with 29 C.F.R. § 1614.107(a)(1) as
being a collateral attack on another proceeding. Claims 1, 2, 4, 5, 6, 9, 10, 11, and 12 all allege
various instances where Agency officials intentionally delayed Complainant’s ability to obtain
Office of Workers’ Compensation Programs (OWCP) benefits by withholding information or
paperwork. Claims 2, 6, and 10 describe how Agency officials allegedly engaged in fraud
related to Complainant’s OWCP submissions. We have consistently held that such allegations
fail to state a claim.

We concluded that Claims 13 and 14 failed to state a claim because Complainant did not
establish her status as an aggrieved employee. Specifically, we concluded that the actions
described in Claims 13 and 14 were not conducted by management, but concerned medical
treatment of an injury subject to an OWCP claim, not the administrative processing of OWCP
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claims themselves. We further concluded that such claims are more accurately characterized as
allegations of medical malpractice, with the proper forum being civil court.

We also concluded that Claims 3, 7, and 8 were untimely filed in accordance with 29 C.F.R.
§ 1614.107(a)(2) and 29 C.F.R. § 1614.105(a)(1). Specifically, we found that Claims 3, 7, and 8
all arose from S1’s failure to follow Complainant’s disability-related medical restrictions. Since
Complainant provided S1 with the medical restrictions, she was aware that he was on notice of
her status as an individual with a disability and the nature of the accommodations she required.
Accordingly, we concluded that Complainant should have been aware of the alleged
discriminatory act (failure to provide accommodations) when it occurred. The alleged
discriminatory actions in Claims 3, 7, and 8 occurred on January 21, February 6, and May 8,
2015 respectively, yet Complainant did not initiate contact with an EEO counselor until February
10, 2016, well beyond the 45-day limitation period.2

The Commission emphasizes that a request for reconsideration is not a second appeal to the
Commission. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614
(EEO MD-110), at 9-18 (Aug. 5, 2015); see, e.g., Lopez v. Dep’t of Agric., EEOC Request No.
0520070736 (Aug. 20, 2007). Rather, a reconsideration request is an opportunity to demonstrate
that the appellate decision involved a clearly erroneous interpretation of material fact or law, or
will have a substantial impact on the policies, practices, or operations of the Agency.
Complainant has not done so here.

After reviewing the previous decision and the entire record, the Commission finds that the
request fails to meet the criteria of 29 C.F.R. § 1614.405(c), and it is the decision of the
Commission to deny the request. The decision in EEOC Appeal No. 0120162628 remains the
Commission's decision. There is no further right of administrative appeal on the decision of the
Commission on this request.

COMPLAINANT’S RIGHT TO FILE A CIVIL ACTION (P0610)

This decision of the Commission is final, and there is no further right of administrative appeal
from the Commission’s decision. 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.

2 We again remind the Agency that as an employer, it has an ongoing obligation to provide
reasonable accommodations, and that failure to provide such accommodations constitutes a
violation each time the employee needs it. As Complainant’s mental and physical disabilities
arise from an injury incurred while she was on the job, we also remind the Agency of its ongoing
duty to provide reasonable accommodations, which is independent of the OWCP and its
processes.
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“Agency” or “department” means the national organization, and not the local office, facility or
department in which you work.

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

July 6, 2017
Date