0120152060
05-04-2016
Tianna M.,1 Complainant, v. Robert M. Speer, Acting Secretary, Department of the Army, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Tianna M.,1
Complainant,
v.
Robert M. Speer,
Acting Secretary,
Department of the Army,
Agency.
Appeal No. 0120152060
DECISION
On May 5, 2015, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a letter dated March 23, 2015, which was effectively a final Agency decision dismissing her informal 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.2
BACKGROUND
At the time of events giving rise to her informal complaint, Complainant worked as a Registered Nurse (Clinical/Psychiatric) at the Agency's Evans Army Community Hospital, Inpatient Behavioral Health Unit in Fort Carson, Colorado.
Complainant filed a claim for Traumatic Injury with OWCP claiming that she was injured on the job on April 1, 2014, during a training exercise. She contends that she was injured during the hands-on segment of the training, entitled "Prevention and Management of Disruptive Behavior." Complainant resigned on May 2, 2014.
In June 2014, Complainant filed formal equal employment opportunity (EEO) complaint ARCARSON14MAY01907 alleging discrimination based on her national origin (Philippines), Race (Asian) and disability. The claim that the Agency accepted was whether Complainant was discriminated against based on her national origin and race when from April 2, 2014 to May 1, 2014, she was subjected to a hostile work environment by her supervisor (S1) commenting negatively on her work injury, performance, and late arrival to work, moving her work area and pressuring her to resign.3
On August 11, 2014, the parties settled the above formal complaint. Complainant agreed, among other things, to withdraw all EEO complaints and pre-complaints, including complaint ARCARSON14MAY01907, and all claims, demands, and causes of action, except workers' compensation, based on facts which predate the settlement agreement, whether currently filed or not, which she had toward the Agency.
In October 2014, OWCP denied Complainant's workers' compensation claim because it was not established that her injury and/or medical condition arose during the course of employment and within the scope of compensable work factors. It explained that her employer marked on the CA-1 form that Complainant was not in the Performance of Duty when she experienced her injury on April 1, 2014.
In February 2015, Complainant filed a claim with the Agency that it breached the settlement agreement, and on March 11, 2015, the Agency issued a final Agency decision (FAD) to her, appealable to our office, finding no breach. The docket number captioned in the FAD was ARCARSON14MAY01907. Complainant has not appealed this FAD.
On or about March 18, 2015, Complainant filed an informal complaint alleging that the Agency discriminated against her based on reprisal for prior protected EEO activity under Title VII and the Rehabilitation Act when she learned on March 12, 2015, that S1 intentionally misrepresented information in the Federal Employee's Notice of Traumatic Injury and Claim for Continuation of Pay/Compensation, Form CA-1, filed with the Office of Workers' Compensation Programs (OWCP), resulting in the denial of her OWCP claim. This is the claim before us.
On March 23, 2015, an Agency EEO Manager wrote Complainant that the EEO office would not address her claim because it stated the same claim in her June 2014 formal complaint that she was harassed by S1, she already raised the matter in the EEO counseling process leading to her June 2014 complaint, and by signing the settlement agreement in August 2014, she closed out all inquiry into the claim accepted for her June 2014 complaint. The Agency wrote Complainant that her informal complaint concerned her workers' compensation claim which will not be readdressed by the EEO office, and it has no jurisdiction over the matter. It advised Complainant to contact OWCP. While the Agency did not give Complainant appeal rights, she filed an appeal with this office.
On appeal, Complainant contends, as she did before, that because she did not learn until March 12, 2015, that S1 misrepresented information in her CA-1 form, she made a new claim in her informal complaint. She indicates that the misrepresentation occurred by May 2014, when S1 filled out the supervisor portion of the CA-1 form. She suggests that she did not know the identity of those responsible until obtaining a copy of the portion of the form completed by S1. She also attributes the misrepresentation to an Agency official who works on workers' compensation matters.
In opposition to the appeal the Agency treats its March 23, 2015, letter as a FAD, and argues it was correctly decided. It argues that the proper venue to raise workers' compensation issues is with OWCP.
ANALYSIS AND FINDINGS
As an initial matter, we take this opportunity to remind the Agency that when a Complainant contacts an Agency EEO office with the intention to file an EEO complaint, the EEO office has a duty to provide EEO counseling. 29 C.F.R. � 1614.105. If the dispute has not been resolved to the satisfaction of the aggrieved person, the EEO Counselor must tell the aggrieved person that she has the right to pursue the claim further through the formal complaint procedure. It is the aggrieved person, and not the EEO Counselor, who must decide whether to file a formal complaint of discrimination. Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at 2-17 (as revised Aug. 5, 2015). The EEO Counselor shall not attempt in any way to restrain the aggrieved person from filing a complaint. 29 C.F.R. � 1614.105(g). Here, the Agency violated these requirements. While the Agency believed that any complaint growing out of Complainant's informal complaint was subject to procedural dismissal, this was not a reason to refuse to provide EEO counseling. The Agency also had a duty, unless the parties otherwise resolved the matter, to issue the Complainant a notice of right to file a complaint. 29 C.F.R. � 1614.105. The time to dismiss a complaint pursuant to 29 C.F.R. � 1614.107, if the Agency finds it has reason to do so, is after a complainant files a formal complaint, not before. Such a dismissal must include appeal rights to this office. Dismissing Complainant's informal complaint without appeal rights violated the above regulations and EEO MD-110.
Nevertheless, we exercise our discretion not to remand Complainant's informal complaint for EEO counseling. In the August 11, 2014, settlement agreement, Complainant agreed to withdraw all claims, demands, and causes of action, except workers' compensation, based on facts which predate the settlement agreement, whether currently filed or not, which she had toward the Agency. This covers Complainant filing an EEO complaint alleging that the Agency discriminated against her when by May 2014, it misrepresented information in its portion of the CA-1, even if she was not aware of this until after the settlement agreement. Further, Complainant's informal complaint fails to state a claim because she is using the EEO process to collaterally attack the OWCP process. OWCP has the jurisdiction to assess the accuracy of the parties' submissions when making its determination on whether to grant a workers' compensation claim, not the EEOC. Schneider v. United States Postal Service, EEOC Request No. 05A01065 (Aug. 15, 2002).
The Agency's dismissal is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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 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. The requests 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 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
May 4, 2016
__________________
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 Since the Agency did not give Complainant appeal rights, we find her appeal was timely filed.
3 We make no assessment on whether this definition was correct. In its acceptance letter, the Agency declined to accept the basis of disability, finding Complainant had a transitory or minor impairment, not a disability. While this matter is not before us, we take this opportunity to advise the Agency that it erred in not accepting the basis of disability. A determination that an impairment does not rise to the level of a disability goes to the merits of the complaint, not to whether the disability basis should be accepted for investigation.
---------------
------------------------------------------------------------
---------------
------------------------------------------------------------
2
0120152060
5
0120152060