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