01A23643_r
09-17-2003
Donnie M. King, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Donnie M. King v. Department of Veterans Affairs
01A23643
September 17, 2003
.
Donnie M. King,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A23643
Agency No. 2003-0580-2001300679
DECISION
Complainant filed an appeal with this Commission from a May 21, 2002
agency decision, dismissing her complaint on the grounds that the
complaint failed to state a claim. The agency's decision identified
the issues of the complaint as whether complainant was discriminated
against based on her disability and age, when:
On or about September 21, 2001, Persons A and B requested that complainant
apply for temporary (four-hour) positions based upon her physical
restrictions. Specifically, complainant's physician indicated in writing
that she should work only four hours per day due to her disability.
Person B charged complainant leave without pay for the last five or
six months while management condoned the actions of her co-workers when
they were allowed to report to duty tardy without being charged leave
(January 2000 through September 2001).
Complainant has not challenged the framing of the complaint. The agency
stated that complainant was attempting to raise a claim of harassment.
The Commission agrees with this characterization of the complaint.
We note that complainant is not alleging that she was denied a reasonable
accommodation.
The Commission finds that the incidents alleged are not sufficiently
severe or pervasive so as to state a claim of harassment. Furthermore,
the Commission finds that complainant is not aggrieved by the mere
request at issue in claim (a). Therefore, we find that claim (a) is
properly dismissed for failing to state a claim pursuant to 29 C.F.R. �
1614.107(a)(1).
Regarding claim (b), we agree with the agency that this claim amounts
to a collateral attack on the workers' compensation process. The agency
noted that complainant filed for workers' compensation benefits for all
the dates that she was charged leave and or placed in leave without
pay status. The agency also indicated that complainant's claim for
workers' compensation benefits was approved from September 26, 2001
through May 9, 2002, and that complainant was still receiving workers'
compensation benefits. The record reflects that the claim of being
charged with leave without pay relates to complainant's work injury and
her alleged inability to work beyond four hours. The record reveals
that complainant made claims for lost wages to the Office of Workers'
Compensation Programs (OWCP) for being restricted to a four-hour schedule
as a result of the work injury. The proper forum for complainant to
raise her challenge to actions which occurred in connection with her OWCP
claim is with the OWCP itself. See Wills v. Department of Defense, EEOC
Request No. 05970596 (July 30, 1998). Accordingly, we find that claim
(b) also fails to state a claim.
Accordingly, the agency's dismissal of the complaint is AFFIRMED.
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
September 17, 2003
__________________
Date