05970146
10-23-1998
Paul A. Pirozzi, Appellant, v. John H. Dalton, Secretary, Department of the Navy, Agency.
Paul A. Pirozzi v. Department of the Navy
05970146
October 23, 1998
Paul A. Pirozzi, )
Appellant, )
)
v. ) Request No. 05970146
) Appeal No. 01960082
John H. Dalton, ) Agency No. 95-60478-003
Secretary, )
Department of the Navy, )
Agency. )
______________________________________)
DENIAL OF REQUEST FOR RECONSIDERATION
On November 19, 1996, Paul A. Pirozzi (appellant), timely initiated
a request to the Equal Employment Opportunity Commission (EEOC)
to reconsider the decision in Pirozzi v. Department of Navy, EEOC
Appeal No. 01960082 (October 30, 1996). EEOC Regulations provide that
the Commissioners may, in their discretion, reconsider any previous
Commission decision. 29 C.F.R. �1614.407(a). The party requesting
reconsideration must submit written argument or evidence which tends to
establish one or more of the following three criteria: new and material
evidence is available that was not readily available when the previous
decision was issued, 29 C.F.R. �1614.407(c)(1); the previous decision
involved an erroneous interpretation of law, regulation or material fact,
or misapplication of established policy, 29 C.F.R. �1614.407(c)(2);
and the previous decision is of such exceptional nature as to have
substantial precedential implications, 29 C.F.R. �1614.407(c)(3).
Appellant filed a formal EEO complaint alleging that he was subjected
to reprisal because his supervisor made false statements in a September
7, 1994 letter to the Office of Workers' Compensation Programs (OWCP)
of the Department of Labor in an effort to discredit appellant's claim.
Appellant filed a claim with OWCP in April 1994 for compensation benefits
for an emotional condition he believed was related to the job. In his
EEO complaint, appellant generally alleges that he was being harassed
in reprisal for previous EEO activities and complaints to the Office
of Special Counsel and the Inspector General. Appellant asserted that
his supervisor made the same comments contained in the letter to OWCP
concerning appellant's conduct, attendance, and medical conditions in
an earlier context and had been directed to retract them. He contended
that the harassment such as this incident continued even after he began
disability retirement in August 1994.
A review of the September 7, 1994 letter to OWCP reveals that the
supervisor stated that appellant's allegations of a hostile environment
based on sexual harassment were not substantiated, thus his claimed
stress condition was not caused by his working environment. The
supervisor also stated that appellant was issued a Letter of Requirement
for sick leave usage since he used a large quantity of sick leave, and
such absences were not due to his back injury. He also indicated that
appellant was issued a reprimand for discourteous conduct. Furthermore,
the supervisor stated that he issued appellant a letter to obtain medical
documentation concerning his physical and psychological capabilities to
perform his duties. According to the supervisor, based on later medical
documentation appellant was not able to perform all his duties.
In its September 6, 1995 final decision, the agency dismissed appellant's
complaint for failure to state a claim. The agency based its finding on
its authority to controvert an OWCP claim at its discretion. Furthermore,
it concluded that since it did not control the Department of Labor's
decision, it did not affect a term or condition of appellant's employment
with regard to the OWCP claim. Appellant argued again on appeal that he
was harassed when the supervisor submitted a letter with false statements
to OWCP. The previous decision affirmed the agency's finding.
In his request for reconsideration, appellant argues that new and
material evidence indicated that on August 30, 1996 OWCP accepted his
claim changing his disability retirement status to OWCP disability,
thus he was an employee of the agency when the alleged actions occurred.
He also repeated his contention that the false information submitted by
the agency concerning his conduct had been previously rescinded.
In its response to appellant's request, the agency repeats its conclusion
that appellant failed to prove that his allegations concern an employment
policy or practice that affects a term or condition of his employment.
The agency also contends that appellant is no longer aggrieved because
the compensation claim was ultimately approved by OWCP, and thus his
claim for compensatory damages is also not processable.
ANALYSIS AND FINDINGS
After a careful review of the record, the Commission finds that
appellant's request for reconsideration meets none of the criteria of
29 C.F.R. �1614.407(c). It is therefore the decision of the Commission
to DENY appellant's request.
The Commission has held that an EEO complaint alleging discrimination in
connection with a workers' compensation claim before OWCP states a claim
within the Commission's jurisdiction only under limited circumstances.
Schultz v. U.S. Postal Service, EEOC Request No. 05950173 (September
26, 1996); Hogan v. Department of the Army, EEOC Request No. 05940407
(September 24, 1994). In particular, a complainant may not use the
EEO process to launch a collateral attack on the workers' compensation
process. Story v. U.S. Postal Service, EEOC Request No. 05960314
(October 18, 1996). The Commission has recognized that the agency has
the right to represent its position and interest in the OWCP Forum,
and will not review decisions which would require it to judge the
merits of a workers' compensation claim. Hogan, EEOC Request No.
05940407.
Where a complainant alleges that the agency discriminated in the
processing of a workers' compensation claim -- for example, by failing
to submit required paperwork -- then the complaint states an EEO claim.
Foster v. U.S. Postal Service, EEOC Appeal No. 01951370 (May 8, 1995),
req. to recon. den., EEOC Request No. 05950693 (May 16, 1996). However,
where a complainant alleges that the agency discriminated in a manner
pertaining to the merits of the workers' compensation claim -- for
example, by submitting paperwork containing allegedly false information
-- then the complaint does not state an EEO claim. Id.; Schultz, EEOC
Request No. 05950173.
Here, although appellant characterizes his allegation as one of
"harassment," the gist of his allegation is that in the due course
of processing his workers' compensation claim, the agency made false
statements to OWCP going to the merits of that claim. Accordingly,
the previous decision properly affirmed the FAD dismissing appellant's
complaint for failure to state an EEO claim. Cf. Lau v. National
Credit Union Administration, EEOC Request No. 05950037 (March 18,
1996) (complaint alleging that agency improperly released accurate,
but privileged, information to OWCP states an EEO claim).
CONCLUSION
After a review of appellant's request to reconsider, the previous
decision, and the entire record, the Commission finds that appellant's
request does not meet the criteria of 29 C.F.R. �1614.407(c), and is
DENIED. The decision in Appeal No. 01960082 remains the final decision
of the Commission. There is no further right of administrative appeal
from the decision of the Commission on this request for reconsideration.
STATEMENT OF RIGHTS - ON REQUEST FOR RECONSIDERATION
RIGHT TO FILE A CIVIL ACTION (P0993)
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.
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. 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.
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:
Oct. 23, 1998
__________________ _______________________
DATE Frances M. Hart
Executive Officer
Executive Secretariat