01A05379
11-09-2000
Robert J. Vavra, Jr., Complainant, v. Hershel W. Gober, Acting Secretary, Department of Veterans Affairs, Agency.
Robert J. Vavra, Jr. v. Department of Veterans Affairs
01A05379
November 9, 2000
.
Robert J. Vavra, Jr.,
Complainant,
v.
Hershel W. Gober,
Acting Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A05379
Agency No. 99-4864
DECISION
Complainant filed an appeal with this Commission from an agency decision
pertaining to 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.<1> The Commission accepts the appeal
in accordance with 29 C.F.R. � 1614.405.
On April 16, 1999, complainant contacted the EEO office claiming
he was harassed when on April 6, 1999, the agency wrote a letter
to the Department of Labor, Office of Workers' Compensation (OWCP),
controverting his claim. Informal efforts to resolve complainant's
concerns were unsuccessful. Subsequently, complainant filed a formal
complaint based on reprisal.
On July 5, 2000, the agency issued a decision dismissing the complaint for
failure to state a claim. Specifically, the agency noted that since the
complaint deals with the agency controverting complainant's OWCP claim,
which was adjudicated by the Department of Labor, complainant's denial
of benefits must be pursued through the workers' compensation forum.
On appeal, complainant argues that his OWCP claim was controverted for
discriminatory reasons, in reprisal for other EEO complaints he had filed.
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).
Here, complainant claims that an agency official made false and misleading
remarks, which caused the agency to controvert his OWCP claim. Upon
review, the Commission finds that the claims of the complaint constitute
a collateral attack on the OWCP process and, therefore, fail to state
a cognizable claim. See Reloj v. Department of Veterans Affairs, EEOC
Request No. 05960545 (June 15, 1998) (claim that agency's provision
of false information to the OWCP resulted in denial of benefits is a
collateral attack on OWCP's decision and, thus, fails to state a claim).
It has been long held that an agency has an obligation to controvert
an employee's OWCP claim when there is a dispute as to an employee's
entitlement. As a general rule, agency opposition to an OWCP claim does
not affect a term, condition or privilege of employment so as to render
a person aggrieved. See Hall v. Department of Treasury, EEOC Appeal
No. 01945595 (February 23, 1995).
Accordingly, the agency's decision dismissing the complaint was proper
and is hereby AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
November 9, 2000
__________________
Date
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply
to all federal sector EEO complaints pending at any stage in the
administrative process. Consequently, the Commission will apply
the revised regulations found at 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.