01A20238_r
02-22-2002
Blake M. Faust, Complainant, v. Norman Y. Mineta, Secretary, Department of Transportation, Agency.
Blake M. Faust v. Department of Transportation
01A20238
February 22, 2002
.
Blake M. Faust,
Complainant,
v.
Norman Y. Mineta,
Secretary,
Department of Transportation,
Agency.
Appeal No. 01A20238
Agency No. 3-01-3048
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated May 22, 2001, 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.
and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act),
as amended, 29 U.S.C. � 791 et seq.
In his complaint, complainant alleged that he was subjected to
discrimination on the bases of race (Caucasian), national origin
(European), and disability when on October 18, 2000, the agency wrote
a letter containing defamatory and irresponsible statements to the
Department of Labor, Office of Workers Compensation in an attempt to
controvert complainant's OWCP claim.
The agency dismissed the complaint for failure to state a claim.
Where a complainant alleges that the agency discriminated in a manner
pertaining to the merits of the workers' compensation claim, for
example by making allegedly false statements, then the complaint does
not state a claim. See Pirozzi v. Department of the Navy, EEOC Request
No. 05970146 (October 23, 1998)(allegedly false statements made by
agency to OWCP during OWCP's processing of a workers' compensation claim
goes to merits of compensation claim); Hogan v. Department of the Army,
EEOC Request No. 05940407 (September 29, 1994)(reviewing a claim that
agency officials provide misleading statements to OWCP would require the
Commission to essentially determine what workers' compensation benefits
the complainant would likely have received); Reloj v. Department of
Veterans Affairs, EEOC Request No. 05960545 (June 15, 1998)(claim that
agency's provision of false information to the OWCP resulted in denial
of benefits is a collateral attack on OWCP's decision and therefore
fails to state a claim). Because complainant's complaint concerns the
agency's allegedly false statements provided to the OWCP by the agency,
the complaint fails to state a claim.
Accordingly, the final agency decision dismissing this complaint for
failure to state a claim was proper and is hereby 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
February 22, 2002
__________________
Date