0120101226
07-12-2012
Stephen P. Durham, Complainant, v. Tom Kilgore, President and Chief Executive Officer, Tennessee Valley Authority, Agency.
Stephen P. Durham,
Complainant,
v.
Tom Kilgore,
President and Chief Executive Officer,
Tennessee Valley Authority,
Agency.
Appeal No. 0120101226
Agency No. 2010016
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated January 15, 2010, dismissing his complaint of unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq., 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked at the Agency's Widows Creek Fossil Plant in Stevenson, Alabama. On December 29, 2009, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of his disability (herniated disk), age (46 at the relevant time), and reprisal for prior protected EEO activity when:
1. management provided false statements to the Office of Workers' Compensation Program (OWCP) from 2006 through the present;
2. the International Brotherhood of Electrical Workers (IBEW) failed to assist Complainant from 2005 through the present; and
3. on or about October 17, 2009, management conspired to remove documents from Complainant's medical file so that his OWCP claim would be denied.
The Agency dismissed the complaint for failure to state a claim, pursuant to 29 C.F.R. �1614.107(a)(1).1 The Agency found that claims (1) and (3) constitute an impermissible collateral attack on the OWCP process. The Agency dismissed claim (2) on the grounds that IBEW is a separate entity from TVA and therefore outside the jurisdiction of the EEO process.
On appeal, Complainant reiterates his contention that he was subjected to unlawful discrimination. He also alleges additional claims of disability discrimination under the Rehabilitation Act. These claims, raised for the first time on appeal, will not be addressed in the instant decision. Complainant is advised that if he wishes to pursue any additional claims, he should initiate contact with an EEO Counselor.
ANALYSIS AND FINDINGS
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in relevant part, that an agency shall dismiss a complaint that fails to state a claim. 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, .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 (Apr. 21, 1994).
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 States Postal Service, EEOC Request No. 05940585 (September 22, 1994); Lingad v. United States Postal Service, EEOC Request No. 05930106 (June 25, 1993). The proper forum for Complainant to have his issues concerning the processing of his OWCP claim is the Department of Labor, which administers OWCP laws and procedures. It is inappropriate to now attempt to use the EEO process to collaterally attack actions which occurred before other forums. We concur with the Agency's dismissal of claims (1) and (3).
Finally, we concur with the Agency's dismissal of claim (2) as Complainant's claim against the IBEW is outside the purview of the Commission's jurisdiction under 29 C.F.R. � 1614 because the IBEW is not a federal agency.
CONCLUSION
Therefore, we AFFIRM the Agency's final decision.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 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 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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
July 12, 2012
__________________
Date
1 By letter, dated January 13, 2010, Complainant attempted to amend his complaint to add claims under the Uniformed Services Employment and Reemployment Rights Act (USERRA). The Commission does not have jurisdiction to enforce USERRA, therefore the Agency's dismissal of these additional claims was proper.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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