05a51172
10-12-2005
Carolyn R. Milton, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Carolyn R. Milton v. Department of Veterans Affairs
05A51172
10-12-05
.
Carolyn R. Milton,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Request No. 05A51172
Appeal No. 01A52540
Agency No. 2003-0580-2004101753
Hearing No. 330-2005-00016x
DECISION ON REQUEST TO RECONSIDER
Carolyn R. Milton (complainant) timely requested reconsideration of the
decision in Carolyn R. Milton v. James Nicholson, Secretary, Department
of Veterans Affairs, EEOC Appeal No. 01A52540 (August 22, 2005).
EEOC regulations provide that the Commission may, in its discretion,
grant a request to reconsider any previous Commission decision where
the party demonstrates that: (1) the appellate decision involved a
clearly erroneous interpretation of material fact or law; or (2) the
decision will have a substantial impact on the policies, practices,
or operation of the agency. 29 C.F.R. � 1614.405(b).
In the previous decision, the Commission found that complainant's
complaint was properly dismissed. Complainant claimed discrimination
based on disability when the agency withdrew its offer of employment for
the position of Program Support Clerk. Since 1991, complainant had been
receiving benefits through the Office of Workers' Compensation Programs
(OWCP) due to an injury incurred while she was employed by another agency.
Under the Federal Employees Compensation Act, as administered by OWCP,
certain procedures must be followed when a beneficiary seeks to return
to employment. Complainant did not comply with these procedures or
contact OWCP about re-employment with the federal government, and the
agency withdrew its job offer.
In order to merit the reconsideration of a prior decision, the requesting
party must submit written argument that tends to establish that at least
one of the criteria of 29 C.F.R. � 1614.405(b) is met. The Commission's
scope of review on a request for reconsideration is narrow and is not
merely a form of a second appeal. Lopez v. Department of the Air Force,
EEOC Request No. 05890749 (September 28, 1989); Regensberg v. USPS,
EEOC Request No. 05900850 (September 7, 1990). The Commission finds that
the complainant's request does not meet the regulatory criteria of 29
C.F.R. � 1614.405(b), in that, the request does not identify a clearly
erroneous interpretation of material fact or law, nor does it show that
the underlying decision will have a substantial impact on the policies,
practices or operation of the agency.
On appeal, complainant contended that her complaint was directed at
the agency's failure to hire her because of her disability and did not
involve her suitability or her receipt of OWCP benefits. Nevertheless,
because she is receiving benefits, and her complaint challenges OWCP's
procedures for re-employment, her complaint is a collateral attack on
the processes of another federal agency, i.e., OWCP. The Commission
has held that it will not allow a collateral attack on OWCP's processes.
See Willis v. Department of Defense, EEOC Request No. 05970596 (July 30,
1998). For this reason, we find that the prior decision properly affirmed
the agency's action dismissing her claim for failure to state a claim.
29 C.F.R. � 1614.107(a)(1). As indicated in the previous decision,
complainant should pursue her matter through OWCP.
After a review of the complainant's request for reconsideration, the
previous decision, and the entire record, the Commission finds that the
request fails to meet the criteria of 29 C.F.R. � 1614.405(b), and it
is the decision of the Commission to deny the request. The decision
in EEOC Appeal No. 01A52540 remains the Commission's final decision.
There is no further right of administrative appeal on the decision of
the Commission on the decision of the Commission on this request.
STATEMENT OF COMPLAINANT'S RIGHTS - ON REQUEST FOR RECONSIDERATION
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0900)
This decision of the Commission is final, and there is no further right
of administrative appeal from the Commission's decision. 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.
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
___10-12-05_______________
Date