Kevin R. McLane, Complainant,v.Lt. Gen. Keith B. Alexander Director, National Security Agency, Agency.

Equal Employment Opportunity CommissionMay 23, 2007
0120071156 (E.E.O.C. May. 23, 2007)

0120071156

05-23-2007

Kevin R. McLane, Complainant, v. Lt. Gen. Keith B. Alexander Director, National Security Agency, Agency.


Kevin R. McLane,

Complainant,

v.

Lt. Gen. Keith B. Alexander

Director,

National Security Agency,

Agency.

Appeal No. 0120071156

Agency No. 06024

DECISION

Complainant filed a timely appeal with this Commission from the

agency's decision dated November 22, 2006, dismissing his complaint of

unlawful employment discrimination in violation of 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. In his complaint, complainant alleged

that he was subjected to discrimination on the bases of disability

(due to electrocution injury on the job) and age (D.O.B. 01/05/57)

when on April 12, 2006, he received a letter from the agency advising

him that it could not accommodate his disability and that the agency

would look for a position in another office that could accommodate his

medical restrictions.

The agency dismissed the instant complaint in accordance with 29 C.F.R. �

1614.107(a)(5) on the grounds that it alleged a proposal to take a

personnel action, or other preliminary step to taking a personnel action

was discriminatory. Specifically, the agency indicated that before

complainant accepted or rejected the agency's job offer, complainant's

medical restrictions were lifted and he was able to return to his

previous position with the agency. Alternatively, the agency found that

complainant s complaint failed to state a claim and dismissed pursuant

to 29 C.F.R. � 1614.107(a)(1) as a collateral attack on the Office of

Workers' Compensation Programs (OWCP).

The record reveals that complainant was electrocuted while working

for the agency in August 2004. The incident led to medical problems

for complainant which was compensated through OWCP in September 2005.

Thereafter on March 27, 2006, complainant's physician cleared him to

work a sedentary position, two days per week for eight hours, with

position changes every 15 minutes and limited repetitive activities.

The April 12, 2006 letter to complainant informed him that the agency

could not accommodate his medical restrictions and that a search would be

made to find a suitable position. On June 8, 2006, the agency informed

complainant that it had found a light duty position as a Cryptologic

Operations Watch Officer which met his medical restrictions. However,

the record indicates that in a letter from complainant's physician

dated July 18, 2006, his medical restrictions were lifted and he was

able to report to his previous position with no limitations. On appeal,

complainant confirms that he returned to work full time once his medical

restrictions were lifted.

The Commission has held that a claim raised with an EEO Counselor

regarding the processing of an OWCP claim constitutes a collateral attack

on that process and, as such, fails to state a claim in the EEO process.

Schneider v. USPS, EEOC Request No. 05A01065 (August 15, 2002). We find

that complainant complaint fails to state a claim. 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);

Lingad v. United States Postal Service, EEOC Request No. 05930106

(June 25, 1993). The proper forum for complainant to have raised his

challenges to actions which occurred during the arbitration proceeding

was at that proceeding itself. It is inappropriate to now attempt to

use the EEO process to collaterally attack actions which occurred during

the arbitration process.

Moreover, we find that because complainant was returned to his full

time position, he has not shown injury to a term, condition or privilege

of his employment. In that regard, we note that while complainant has

alleged that the agency restricted his ability to take assignments that

required travel, he has not provided the Commission persuasive evidence to

support his claim. Upon review, the Commission finds that the agency's

decision dismissing complainant's complaint was proper and the agency's

decision is hereby affirmed for the reasons set fort herein.

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

May 23, 2007

__________________

Date

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0120071156

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P. O. Box 19848

Washington, D.C. 20036

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0120071156