01A33458_r
09-30-2003
John G. Auman, Complainant, v. Thomas J. Ridge, Secretary, Department of Homeland Security, Agency.
John G. Auman v. Department of Homeland Security
01A33458
September 30, 2003
.
John G. Auman,
Complainant,
v.
Thomas J. Ridge,
Secretary,
Department of Homeland Security,
Agency.
Appeal No. 01A33458
Agency No. I-02-E060
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated May 8, 2003, dismissing his complaint of unlawful
employment discrimination. In his complaint, complainant alleged that
he was subjected to discrimination on the bases of race (Caucasian),
sex (male), and disability when:
In December 1998, complainant became aware that the agency failed to
properly submit forms related to his benefit claim to the Office of
Workers' Compensation Program (�OWCP�).
In July 2001, complainant became aware that his employment had been
terminated on July 12, 1999.
The agency dismissed claim 1 pursuant to 29 C.F.R. � 1614.107(a)(1), for
failure to state a claim. Specifically, the agency found that complainant
lodged a collateral attack on the workers' compensation process and failed
to establish that complainant was an aggrieved employee. Additionally,
the agency dismissed claim 2 pursuant to 29 C.F.R. � 1614.107(a)(2),
for untimely EEO Counselor contact.
Claim 1
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in
relevant part, that an agency shall dismiss a complaint that fails to
state a claim. 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 disabling condition. 29 C.F.R. �
1614.103, .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).
The Commission finds that claim 1 is outside the purview of the EEO
process and that the agency properly dismissed this matter for failure
to state a claim. Complainant is not claiming that the agency failed
to send in any form to OWCP. We find that complainant is improperly
attempting to use the EEO process to collaterally attack the outcome
of the workers' compensation process. The Commission has held that an
employee cannot use the EEO complaint process to lodge a collateral attack
on another proceeding. See Wills v. Department of Defense, EEOC Request
No. 05970596 (July 30, 1998); Kleinman v. United States Postal Service,
EEOC Request No. 05940585 (September 22, 1994). The proper forum for
complainant to have raised his dissatisfaction with the processing of
his workers' compensation claim is within that process.
Claim 2
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires complaints of
discrimination to be brought to the attention of the EEO Counselor within
forty-five (45) days of the date of the claimed discriminatory matter,
or, in the case of a personnel action, within forty-five (45) days of
the effective date of the action. The Commission's regulations, however,
provide that the time limit will be extended when the complainant shows
that he or she was not notified of the time limits and was not otherwise
aware of them, that he or she did not know and reasonably should not
have known that the discriminatory matter or personnel action occurred,
that despite due diligence he or she was prevented by circumstances
beyond his or her control from contacting the counselor within the time
limits, or for other reasons considered sufficient by the agency or the
Commission. See 29 C.F.R. � 1614.105(a)(2).
The record discloses that the Department of Labor adjudicated
complainant's workers' compensation claim in May 1999, and that
complainant's employment was actually terminated on July 12, 1999.
On appeal, complainant stated that, in July 2001, his doctor finally
released him medically to work and that he contacted an OWCP Specialist.
Complainant reported that the OWCP Specialist orally informed him that
his employing agency did not have any work related positions available
for him and that his employment had been terminated on July 12, 1999.
Complainant stated that he was never officially notified by mail of
the termination action. However, the record reveals that, during the
intervening period, complainant did not accrue any leave or receive any
earning statements from the agency. Complainant thereafter initiated
contact with an EEO Counselor on February 6, 2002.
The Commission finds that complainant should have reasonably suspected
discrimination at the latest by July 2001, the date that the OWCP
Specialist orally informed him that his employing agency did not have any
work related positions available for him and that his employment had been
terminated on July 12, 1999. Complainant did not initiate contact with
an EEO Counselor until February 6, 2002, which is beyond the forty-five
(45) day limitation period. On appeal, complainant has presented no
persuasive arguments or evidence warranting an extension of the time
limit for initiating EEO Counselor contact.
Accordingly, the agency's final decision dismissing complainant's
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 30, 2003
__________________
Date