01a44544
11-24-2004
Thomas Hrasch, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Thomas Hrasch v. Department of Veterans Affairs
01A44544
11-24-04
.
Thomas Hrasch,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A44544
Agency No. 200L-0623-2004102076
DECISION
On June 24, 2004, Thomas Hrasch (complainant) filed an appeal from the
agency's final decision dated June 17, 2004, dismissing complainant's
complaint of unlawful employment discrimination in violation of the
Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).<1>
The appeal is timely filed (see 29 C.F.R. � 1614.402(a)) and is accepted
in accordance with 29 C.F.R. � 1614.405.
On March 2, 2004, complainant contacted an EEO counselor, claiming
discrimination based on disability when, in 1980-1982, the agency
denied his request for a reasonable accommodation (orthopedic chair),
would not reassign him to his previous job, would not retrain him,
and forced him to retire; and in 2001-2003, when he was given a job
as a telephone operator and lost his workers' compensation benefits.
Complainant received the Notice of Final Interview (NOFI) on April 22,
2004, and filed a formal complaint on June 13, 2004.
The record reveals that complainant injured his back in March 1980,
while employed at the agency. In 1982, he retired on disability and
received workers' compensation benefits from the Department of Labor,
Office of Workers' Compensation Programs (OWCP). In 2001, his physician
advised OWCP and the agency that he was able to work four hours per day,
and the agency offered him a job as a telephone operator (part-time).
Thereafter, OWCP terminated, reinstated, again terminated his benefits
when he did not attend an appointment for a psychiatric assessment.
On appeal, complainant contended that the most recent discriminatory
action occurred on March 17, 2004, when the agency renewed its offer of
a job as a telephone operator (part-time).
The Commission has held that a claim raised with an EEO counselor
regarding the processing of an OWCP claim constitutes a collateral
attack on that process and, as such, fail to state a claim in the
EEO process. Schneider v. USPS, EEOC Request No. 05A01065 (August
15, 2002). We find that the events beginning in 2001 regarding his
OWCP benefits and the job offer fail to state a claim and are properly
dismissed by the agency pursuant to the Commission's regulations.
29 C.F.R. � 1614.107(a)(2). With regard to the events previous to
2001, the Commission's regulations require that a complainant bring
his/her complaint to the attention of an EEO counselor within 45
days of an alleged discriminatory event or the effective date of an
alleged discriminatory personnel action. 29 C.F.R. � 1614.105(a)(1).
Complainant failed to contact an EEO counselor within 45 days of the
above-described events in 1980 and 1982 and failed to offer an acceptable
explanation or justification for the delay. See 29 C.F.R. � 1614.604(c).
Since complainant did not contact an EEO counselor until March 2004,
his contact was untimely, and the 1980-1982 events in his complaint are
properly dismissed. 29 C.F.R. � 1614.107(a)(2).
For the above reasons, the Commission finds that complainant's complaint
was properly dismissed.
CONCLUSION
Accordingly, the agency's decision is AFFIMRED.
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
__11-24-04________________
Date
1To the extent that complainant is claiming a denial of benefits by the
agency based on his status as a veteran, he is advised that such claims
are not within the purview of the EEOC.