0120101467
08-31-2011
Duane A. Manning, Complainant, v. Leon E. Panetta, Secretary, Department of Defense, (Defense Finance & Accounting Service), Agency.
Duane A. Manning,
Complainant,
v.
Leon E. Panetta,
Secretary,
Department of Defense,
(Defense Finance & Accounting Service),
Agency.
Appeal No. 0120101467
Agency No. DFAS001032010
DECISION
Complainant filed a timely appeal with this Commission from the Agency's
decision dated November 16, 2009, dismissing his complaint of unlawful
employment discrimination in violation of Title VII of the Civil Rights
Act of 1964 (Title VII), as amended, 42 U.S.C. § 2000e et seq., Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. § 791 et seq., and the Age Discrimination in Employment Act
of 1967 (ADEA), as amended, 29 U.S.C. § 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked
as a Accounting Technician at the Agency’s DFAS-Limestone facility in
Limestone, Maine.
On October 14, 2010, Complainant filed a formal complaint alleging that
the Agency subjected him to discrimination on the bases of sex (male),
disability (sleep impairment), age (41), and reprisal for prior protected
EEO activity under Title VII of the Civil Rights Act of 1964 when his
claim for workers’ compensation was denied.
The Agency dismissed the complaint, pursuant to 29 C.F.R. §
1614.107(a)(1), for failure to state a claim, asserting it was a
collateral attack on the workers’ compensation process. The instant
appeal followed.
ANALYSIS AND FINDINGS
The Commission has held that an employee cannot use the EEO complaint
process to lodge a collateral attack on another proceeding. See
Wills v. Dep’t of Def., EEOC Request No. 05970596 (July 30, 1998);
Kleinman v. U.S. Postal Serv., EEOC Request No. 05940585 (Sept. 22,
1994); Lingad v. U.S. Postal Serv., EEOC Request No. 05930106 (June 25,
1993). The proper forum for Complainant to have raised his challenges
to actions which occurred within the workers’ compensation process is
within that process itself. It is inappropriate to now attempt to use
the EEO process to collaterally attack actions which occurred during
the workers’ compensation process. Any arguments or claims regarding
submissions by the Agency to the Office of Worker’s Compensation should
be made to that office, not the Commission.
The Commission finds that the complaint fails to state a claim under the
EEOC regulations because Complainant failed to allege that he suffered
harm or loss with respect to a term, condition, or privilege of employment
for which there is a remedy under the anti-discrimination laws. See Diaz
v. Dep’t of the Air Force, EEOC Request No. 05931049 (April 21, 1994).
Accordingly, the Agency's final decision dismissing Complainant's
complaint is AFFIRMED.1
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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
77960, Washington, DC 20013. 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 (S0610)
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 (Z0610)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with
the Court 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
August 31, 2011
__________________
Date
1 Complainant is cautioned as to the manner in which he files appeals
to the Commission. Complainant sent the Commission a copy of a
formal complaint and indicated that he did not have an Agency number.
The instant appeal is dated December 19, 2009, and the FAD is dated
November 16, 2009, and corresponds with the issue raised in the formal
complaint submitted to the Commission. Because Complainant checked that
he did not have a FAD and did not have an Agency number, he created some
confusion. The Commission relies on the agency number of a complaint
when requesting files from the Agency.
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0120101467
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013