01A22761_r
05-12-2003
Sandra J. Gardner, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Sandra J. Gardner v. Department of Veterans Affairs
01A22761
May 12, 2003
.
Sandra J. Gardner,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A22761
Agency No. 200I-0521-2002101458
DECISION
Complainant appeals to the Commission from the agency's decision dated
March 28, 2002, dismissing her complaint of discrimination for failure
to state a claim pursuant to 29 C.F.R. � 1614.107(a)(1). In a complaint
dated March 1, 2002, complainant alleged that she was subjected to
discrimination on the basis of reprisal for prior EEO activity when:
On December 19, 2001, the agency's Office of Workers' Compensation (OWCP)
Coordinator allegedly tried to prevent complainant from receiving OWCP
payments to which she was entitled, and allegedly falsified complainant's
time-off records by, among other things, excluding complainant's visits
to her doctor.
On December 20, 2001, the OWCP Coordinator allegedly tried to prevent
complainant from receiving OWCP benefits to which she was entitled.
Sometime between December 12, 2001 and January 4, 2002, the OWCP
Coordinator allegedly sent false information to the OWCP, thereby causing
the OWCP to deny complainant �continuation of pay� benefits.
Agencies are required to dismiss complaints that fail to state a claim.
29 C.F.R. � 1614.107(a)(1). Complainant's allegations that the agency did
not properly process her claims before the OWCP constitute a collateral
attack upon the OWCP process, and therefore fail to state a claim.
See Federico v. United States Postal Service, EEOC Request No. 05A01285
(September 26, 2002). 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
May 12, 2003
__________________
Date