01983-2
06-03-1999
Deborah K. Pueschel, Appellant, v. Rodney E. Slater, Secretary, Department of Transportation, Agency.
Deborah K. Pueschel v. Department of Transportation
01983298
June 3, 1999
Deborah K. Pueschel, )
Appellant, )
) Appeal No. 01983298
v. ) Agency No. DOT-2-98-2018
)
Rodney E. Slater, )
Secretary, )
Department of Transportation, )
Agency. )
)
DECISION
On March 19, 1998, appellant filed an appeal with this Commission from
a February 3, 1998 final agency decision which dismissed her complaint
for failure to state a claim. The agency failed to provide a certified
mail return receipt or any other material capable of establishing the
date when appellant received the final agency decision. Accordingly,
the Commission presumes that appellant's appeal was filed within 30 days
of appellant's receipt of the agency's final decision. Accordingly,
the appeal is accepted as timely. See 29 C.F.R. �1614.402(a); EEOC
Order No. 960.
In its final decision, the agency framed the allegations of the October
7, 1997 complaint as whether appellant was discriminated against on
the bases of sex (female), disability (asthma, anxiety, fibromyalgia)
and in reprisal (EEO activity not specified) when, as part of a hostile
environment, the agency failed to pay to appellant approved workers'
disability and compensation benefits. In dismissing the complaint, the
agency stated that appellant failed to allege that an employment policy or
practice was discriminatory. The agency also stated that it did not have
jurisdiction over a complaint when an employee alleges discrimination in
connection with injury claims filed with the Department of Labor's (DOL)
Office of Workers' Compensation Programs (OWCP), noting that matters
involving work injuries are solely within the jurisdiction of the DOL.
EEOC Regulation 29 C.F.R.�1614.107(a) provides that the agency shall
dismiss a complaint or a portion of a complaint that fails to state a
claim under �1614.103 or �1614.106(a) or states the same claim that is
pending before or has been decided by the agency or Commission. An agency
shall accept a complaint from any aggrieved employee or applicant for
employment who believes that he or she has been discriminated against
by that agency because of race, color, religion, sex, national origin,
age or disability. 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).
In addition, regarding workers' compensation claims, the Commission
has consistently held that an agency has the right to controvert any
OWCP claims which it believes to be questionable, as long the agency
is not motivated by prohibited discriminatory reasons. See Gaskins
v. U.S. Postal Service, EEOC Appeal No. 01882945 (January 31, 1989);
Hall v. Department of the Treasury, EEOC Appeal No. 01945595 (February
23, 1995) (agency's obligation to controvert an employee's workers'
compensation claim where there is a dispute as to the stated facts);
Oates v. U.S. Postal Service, EEOC Appeal No. 01910477 (February 12,
1991) (employee states claim by alleging that the agency controverted
OWCP claim as reprisal for prior EEO activity); 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). When an allegation raised by the appellant
concerns a specific allegedly discriminatory action taken by the agency
rather than general allegations concerning the processing of an OWCP
claim, it is appropriate for the Commission to exercise jurisdiction.
See Foster v. U.S. Postal Service, EEOC Request No. 05950693 (May 16,
1996).
Upon review, we are unable to determine the propriety of the agency's
decision. Appellant's complaint reflects that she is alleging that her
health benefits were canceled, that her "leave buy back" was not processed
and that she was not paid "approved" workers' compensation benefits. It
is unclear whether appellant is challenging agency actions independent of
her workers' compensation claims, e.g., cancellation of health benefits;
improper processing of her leave buy back; or improper processing of
her monies approved by OWCP. Consequently, we must remand the complaint
for clarification. Accordingly, consistent with our discussion herein,
the agency's final decision is VACATED and the complaint is REMANDED to
the agency for clarification of the allegations of the complaint.
ORDER
The agency is ORDERED to take the following actions:
1) Within fifteen (15) calendar days of the date this decision becomes
final, the agency shall notify appellant in writing that she must clarify
her allegations, specifically identifying the agency actions in dispute
and the dates of occurrence. Appellant shall be provided fifteen (15)
calendar days within which to respond;
2) Within fifteen (15) calendar days of receiving appellant's response
or within the expiration of the time period for appellant to respond,
the agency shall issue a new final decision or notice of processing
clearly setting forth the allegations raised.
A copy of the agency's request to appellant for clarification and the
notice of processing and/or new final decision must be submitted to the
Compliance Officer, as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant also has the right
to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. �� 1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant has the right to file a civil action on the underlying
complaint in accordance with the paragraph below entitled "Right to File
A Civil Action." 29 C.F.R. �� 1614.408 and 1614.409. A civil action for
enforcement or a civil action on the underlying complaint is subject to
the deadline stated in 42 U.S.C. �2000e-16(c) (Supp. V 1993). If the
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
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 (R0993)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court. 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. In the alternative,
you may file a civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR
DAYS of the date you filed your complaint with the agency, or filed your
appeal with the Commission. 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.
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:
June 3, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations