01A20489_r
04-03-2002
Billy F. Henderson, Complainant, v. Ann M. Veneman, Secretary, Department of Agriculture, Agency.
Billy F. Henderson v. Department of Agriculture
01A20489
April 3, 2002
.
Billy F. Henderson,
Complainant,
v.
Ann M. Veneman,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 01A20489
Agency No. 000812
DECISION
Upon review, the Commission finds that the complaint was properly
dismissed pursuant to EEOC Regulations.
On July 11, 2000, complainant sought EEO counseling claiming that
he had been discriminated against on the bases of age and disability.
Informal efforts to resolve his concerns were unsuccessful. Subsequently,
complainant filed a formal complaint claiming that he had been
discriminated against on the bases of age, disability, and in reprisal
for prior protected activity when:
(a) in November and December 1999, the agency denied his request to work
at home under the Flexiplace rules;
(b) on January 5, 2000, he was harassed by agents of the Office of
Inspector General;
(c) on April 22, 2000, he was forced to retire after being denied the
opportunity to work at home; and
(d) on July 11, 2000, the Office of Workers' Compensation (OWCP) denied
his OWCP claim after the agency failed to support his claim.
The agency issued a final decision dismissing claims (a), (b), and (c)
on the grounds of untimely EEO Counselor contact after finding that
these claims were not raised with the EEO counselor within 45 days of
their occurrence. The agency also dismissed the entire complaint (claims
(a) - (d)) on the grounds that the complaint was untimely filed.
A review of the record persuades the Commission that claims (a), (b),
and (c) were properly dismissed for untimely EEO Counselor contact.
The incidents raised in those claims purportedly occurred in November
and December 1999; January 2000; and April 2000. Therefore, by the time
complainant raised these incidents with the EEO Counselor on July 11,
2000, the 45-day time limit for initial EEO Counselor contact had expired.
On appeal, no persuasive arguments or evidence have been presented to
warrant an extension of the time limit for initiating EEO contact.
We also agree with the dismissal of claim (d). However, the Commission
determines that claim (d) is more properly analyzed in terms of whether
it states a claim. In claim (d), complainant claimed that on July 22,
2000, his OWCP claim was denied. Complainant further claimed that this
denial was the result of the agency's lack of support to his claim.
The Commission has consistently held that an agency opposition to an OWCP
claim does not affect a term, condition, or privilege of employment so as
to render a person aggrieved. See Hall v. Department of the Treasury,
EEOC Appeal No. 01945595 (February 23, 1995). We have also 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). The proper forum for contesting
the outcome of an OWCP claim is with the Department of Labor. Foster v.
United States Postal Service, EEOC Request No. 05950693 (May 16, 1996).
Based on the foregoing, we find that claim (d) fails to state a claim
under our regulations.
Accordingly, the agency's final decision dismissing claims (a) - (d)
was proper and is AFFIRMED.
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
April 3, 2002
Date