0120101604
08-17-2010
Lawrence Battle, Complainant, v. Ray H. LaHood, Secretary, Department of Transportation, (Federal Aviation Administration), Agency.
Lawrence Battle,
Complainant,
v.
Ray H. LaHood,
Secretary,
Department of Transportation,
(Federal Aviation Administration),
Agency.
Appeal No. 0120101604
Agency No. 201023088FAA02
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated February 1, 2010, 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
In his complaint, Complainant alleged that the Agency subjected him to discrimination on the bases of race (African American), color (Black), disability (depressive disorder), age (62 years at time of incident), and reprisal for prior protected EEO activity under a statute that remains unspecified in the record when:
1. On or about October 26, 2009, Complainant was not offered a position to return him to work with the Agency.
The Agency characterized the claim slightly differently, stating that Complainant was alleging he was denied access to the Agency's Return to Work (RTW) program. The Agency dismissed the claim pursuant to 29 C.F.R. � 1614.107(a)(1) for stating the same claim as claims previously decided by the Agency. On appeal, Complainant argues that the instant complaint is not the same as previously filed complaints. In addition, Complainant argues that the Agency ignored other claims that he raised in his Formal Complaint. Finally, Complainant argues that the EEO Counselor failed to comply with � 1614.105. The Agency argues on appeal that Complainant has filed eight previous claims based on the same underlying facts and, 36 separate claims of discrimination against the Agency. The Agency requests sanctions against Complainant for abuse of the EEO process.
ANALYSIS AND FINDINGS
Under 29 C.F.R. � 1614.107(a)(1), an agency shall dismiss a complaint that states the same claim that has been decided by the Agency or Commission. The Agency has shown that in January 2010, the Commission affirmed a June 26, 2009 FAD wherein Complainant alleged among other things that: Agency Human Resources (HR) officials failed to take action on his request to return to work; and HR officials failed to respond to his request to return to work; See Battle v. Dept. of Transportation, EEOC Appeal No. 0120093114 (January 12, 2010), Request for Reconsideration Denied, EEOC Request No. 0520100235 (March 26, 2010). In our prior decision, the Commission noted that Complainant had filed earlier complaints alleging discrimination based on race, sex, color, disability, age, and in reprisal for prior EEO activity when the HR "ignored, failed and refused to take actions concerning his November 7, 2006 and November 22, 2006 correspondence addressing his returning to work under the FAA RTW Program," id., and when "the Agency failed to give Complainant due consideration under the [Agency]/Office of Workers' Compensation Program (OWCP)/ Office of Personnel Management (OPM) Return to Work policies, procedures, regulations and the FAA Return to Work Program when contacted by the Department of Labor (DOL); therefore subjecting him to disparate treatment from similarly situated employees based on his prior protected activity." Id. The Commission found that the claims were therefore correctly dismissed for stating the same claim as a previously filed claim.
Complainant argues that the instant complaint does not state the same claim as previously-filed claims and that the Agency mischaracterized one of his claims. As noted above, the Agency characterized Complainant as alleging discrimination when he was denied access to the RTW program. Complainant maintains on appeal that his complaint is not about the RTW program but that instead "my complaint is about being denied my employment restoration rights in accordance with the Federal Employee's Compensation Act (FECA) law." Complainant's Appellate Brief, pp. 3, 4. A review of Complainant's Formal Complaint, however, reveals that he makes no mention of FECA. Instead, Complainant states that two Agency officials "discriminated and retaliated against me by not offering a position to return me to work when they were contacted by the U.S. Department of Labor (OWCP) assigned Vocational Rehabilitation Counselor, . . . to [sic] do so based on medical documentation [from a physician] stating I can return to work; and [an agency official] advised [the Rehabilitation Counselor] that the FAA would 'not be offering'' me 'a position with the FAA,' although positions existed." Formal Complaint (quotation marks in original).
To the extent Complainant is alleging that the agency violated FECA, the Commission finds that Complainant's claim constitutes an impermissible collateral attack on the Office of Workers' Compensation Program (OWCP) process, which has exclusive authority to administer, interpret, and enforce FECA. "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 raise his challenge to the Agency's alleged failure to comply with FECA is with the OWCP.
To the extent Complainant is alleging that he was discriminated against when Agency officials refused to take action to return him to work when contacted by OWCP officials, we note that in our prior decision we found that Complainant had previously filed a claim alleging "the Agency failed to give Complainant due consideration under the [Agency]/OWCP/OPM Return to Work policies, procedures, regulations and the FAA Return to Work Program when contacted by the Department of Labor (DOL)," Battle, EEOC Appeal No. 0120093114, and therefore the claim was properly dismissed by the Agency for stating the same claim as a previously filed complaint.
With regard to Complainant's argument that the Agency failed to address seven of his eight claims, a review of the Formal Complaint reveals that the claims in question are either a slight rewording of claim 1 (Complainant was told that the Agency "will not be offering [him] a position at this time, he remains free to apply for and compete for vacancies at his discretion," and Complainant was told he would "not be offered a job at this time and not at a future date") and/or they fail to state a claim (e.g., Complainant shared with his Vocational Rehabilitation Counselor (VRC) "over 50 vacancies positions I applied for and competed for and informed her that the FAA is advertising job vacancies on a daily basis"; his VRC told him she was sure that the Agency was aware that Complainant had "preferred" status for specific positions at the Agency; his VRC told him that agency HR officials had said that Complainant had priority consideration for positions, etc.).
With regard to Complainant's argument that the Agency failed to comply with � 1614.105, in view of the fact that we find that Complainant's complaint was properly dismissed, we find any violation of �105 to be harmless error. Complainant has not shown how any additional processing by the EEO Counselor would have altered the fact that his complaint had been previously raised. Finally, with regard to the Agency's request for sanctions against Complainant, the request is denied.
For the above reasons, we AFFIRM the FAD.
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 17, 2010
__________________
Date
2
0120101604
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120101604