01a52540
08-22-2005
Carolyn R. Milton, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Carolyn R. Milton v. Department of Veterans Affairs
01A52540
08-22-05
.
Carolyn R. Milton,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A52540
Agency No. 2003-0580-2004101753
Hearing No. 330-2005-00016x
DECISION
Complainant initiated EEO Counselor contact on February 27, 2004 regarding
her claims of employment discrimination that based on her disability,
the agency failed to hire her for the position of Program Support Clerk
VN-150-03. At the conclusion of the investigation, complainant requested
a hearing before an EEOC Administrative Judge (AJ). Upon review,
however, the Commission finds that the agency appropriately adopted
the AJ's dismissal of complainant's complaint pursuant to 29 C.F.R. �
1614.107(a)(1), for failure to state a claim.
In her complaint, complainant alleged that the agency discriminated
against her when after learning information about her disability, it
failed to hire her for the position of Program Support Clerk. The record
discloses that prior to complainant's application to the agency for
employment, she had previously worked for the Department of the Navy,
where after an injury, she was diagnosed with depression which resulted
in the complainant's receipt of disability benefits through the Office
of Worker's Compensation (OWCP). The record indicates that complainant
has received OWCP benefits since 1991, when she separated from the Navy.
The Commission has held that an employee cannot use the EEO complaint
process to lodge a collateral attack on another proceeding. See Willis
v. Department of Defense, EEOC Request No. 05970596 (July 30, 1998).
The record here reflects that complainant's claim concerns the suitability
of a job offer as determined by the OWCP. Moreover, the AJ in this
matter found that in order for the Commission to address complainant's
claim, it would have to review the determinations and policies of the
OWCP which led to complainant's non-selection. The Commission does not
have jurisdiction over such issues. The proper forum for complainant
to have raised her challenge is before the OWCP, not the Commission.
It is inappropriate to use the EEO process to collaterally attack the
OWCP procedure in this manner.
Accordingly, the agency's final decision adopting the AJ's dismissal
of complainant's complaint is hereby AFFIRMED for the reasons set
forth herein.
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
____08-22-05______________
Date