01973185
04-02-1999
Cynthia Orlando, Appellant, v. Daniel R. Glickman, Secretary, Department of Agriculture, Agency.
Cynthia Orlando v. Department of Agriculture
01973185
April 2, 1999
Cynthia Orlando, )
Appellant, )
) Appeal No. 01973185
v. ) Agency No. 95-1208
)
Daniel R. Glickman, )
Secretary, )
Department of Agriculture, )
Agency. )
)
DECISION
On March 5, 1997, appellant filed a timely appeal of a February 4, 1997
final agency decision dismissing her complaint for failure to state a
claim.
The final agency decision framed the allegation of appellant's December
3, 1995 complaint as whether appellant was discriminated against on
the bases of national origin (Hispanic), sex (female) and in reprisal
(prior EEO activity) when the agency provided an inaccurate report
to the Department of Labor's Office of Workers' Compensation Programs
(OWCP) which resulted in the denial of her workers' compensation claim.
In dismissing her complaint, the agency stated that appellant was not
aggrieved and that the denial of her workers' compensation claim was not
within the jurisdiction of the agency but was solely within the purview
of OWCP.
EEOC Regulation 29 C.F.R. �1614.107(a) provides that an agency may
dismiss a complaint or a portion of a complaint which fails to state a
claim pursuant to 29 C.F.R. �1614.103 or �1614.106(a). An agency shall
accept a complaint from any aggrieved employee who believes that he
or she has been discriminated against by that agency because of race,
color, religion, sex, national origin, age or a disabling condition.
See 29 C.F.R. �1614.103; �1614.106(a). The Commission's Federal sector
case precedent has long defined an "aggrieved employee" as one who suffers
a present harm or loss with respect to a term, condition, or privilege
of employment for which there is a remedy. Diaz v. Department of the
Air Force, EEOC Request No. 05931049 (April 21, 1994).
Upon review, we find that the final agency decision was proper and
appellant is not aggrieved for purposes of the EEOC Regulations. The
record clearly reveals that appellant is alleging that the agency provided
false information and statements to the OWCP during the processing of
her workers' compensation claim which led to the denial of her claim.
Where a complainant alleges that the agency discriminated in a manner
pertaining to the merits of the workers' compensation claim, for example,
by submitting paperwork containing allegedly false information, then the
complaint does not state an EEO claim. 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
an allegation that agency officials provided 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) (allegation that agency's provision of false information to the OWCP
resulted in denial of benefits is a collateral attack on OWCP's decision
and, thus, fails to state a claim). Because appellant's complaint in the
case at hand concerns allegedly false information provided to the OWCP
by the agency, the allegation fails to state a claim. Although the
Commission has held that a complainant may not use the EEO process
to launch a collateral attack on the workers' compensation process,
the Commission has recognized very narrow exceptions to the general
prohibition on collateral attacks. See Story v. U.S. Postal Service,
EEOC Request No. 05960314 (October 18, 1996); Lau v. National Credit Union
Administration, EEOC Request No. 05950037 (March 18, 1996). However,
the allegation in the case at hand does not fall within these narrow
exceptions. The present complaint concerns the general administration
of workers' compensation benefits and does not relate to an employment
policy or practice.
Based on the foregoing and consistent with our discussion, the agency's
final decision is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
April 2, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations