Cynthia Orlando, Appellant,v.Daniel R. Glickman, Secretary, Department of Agriculture, Agency.

Equal Employment Opportunity CommissionApr 2, 1999
01973185 (E.E.O.C. Apr. 2, 1999)

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