01995471_01996686
02-04-2000
Sidney G. Leslie, Complainant, Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
Sidney G. Leslie, )
Complainant, )
)
) Appeal Nos. 01995471
) 01996686
) Agency Nos. 99-2047
Togo D. West, Jr., ) 99-3875
Secretary, )
Department of Veterans Affairs, )
Agency. )
____________________________________)
DECISION
On June 24, 1999, complainant filed a timely appeal with this Commission
from a final agency decision (FAD) dated June 3, 1999, pertaining to
his complaint of unlawful employment discrimination in violation of
Section 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. �
791 et seq.<1> In its FAD, the agency defined complainant's complaint
as alleging harm on the basis of mental disability when:
On April 1, 1999, complainant became aware of a letter in his Office of
Workers' Compensation Program (OWCP) case file, written by the agency
OWCP Coordinator, stating that complainant had made slanderous remarks
to the OWCP coordinator, and was a threat to her; and
On April 5, 1999, complainant became aware that the OWCP Coordinator
had written a letter to the Department of Labor (DOL) stating, �The
information that [complainant] provided does not substantiate that the
stress is related to the delay or denial of medical treatment for his
back.
The agency dismissed the complaint for failure to state a claim.
Specifically, the agency found that statements from the agency OWCP
Coordinator, even if false, do not render complainant aggrieved.
The agency also noted that the OWCP Coordinator was removed from working
on complainant's case, and the letter in question was destroyed by the
agency's new OWCP case worker.
On appeal (01995471), complainant alleges that he suffered harm because
the DOL used the OWCP Coordinator's false statements as a basis to deny
complainant's compensation claim. Complainant also argues that his
complaint was based on physical disability, not mental disability.
Complainant filed a second formal complaint on July 28, 1999, alleging
discrimination based on reprisal for his prior EEO activity, in violation
of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �
2000e et seq. In a FAD dated August 5, 1999, the agency defined this
complaint as alleging that on June 21, 1999, complainant became aware
that the OWCP Coordinator sent a report of contact containing false and
misleading information to the DOL regarding an interaction she had with
complainant's physician. The agency dismissed the second complaint for
failure to state a claim.
Complainant filed a timely appeal from the August 5, 1999 FAD (01996686).
On appeal, complainant argued that the OWCP Coordinator threatened his
doctor and attempted to have complainant arrested for his hostile and
aggressive behavior when he left forms with the OWCP Coordinator, even
though complainant sent the forms through administrative personnel.
The record includes complainant's second formal complaint, wherein
complainant alleged that the OWCP Coordinator withheld his physician's
response to the Coordinator's report of contact from DOL, ordered
complainant's doctor to call the police and have complainant arrested,
and filed false statements with DOL even after she had been removed from
the case.
The Commission finds that the agency improperly defined the claims in
complainant's second complaint. Complainant clearly alleged, and argues
on appeal, that:
The OWCP Coordinator sent a misleading report of contact to the DOL
regarding an interaction with complainant's physician;
The OWCP Coordinator withheld the physician's statement from the OWCP;
and
The OWCP Coordinator attempted to have complainant arrested for his
hostile and aggressive behavior.
Claims (b) and (c) were not addressed by the agency, and the Commission
interprets the agency's silence as a dismissal of the claims.
Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter
cited as 29 C.F.R. � 1614.107(a)(1)) provides, in relevant part,
that an agency shall dismiss a complaint, or portion thereof, 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 22, 1994).
The Commission has held that a collateral attack to the OWCP process
fails to state a claim. See Conley v. Navy, EEOC Request No. 05970402
(Feb. 11, 1999); Agustin v. Department of Labor, EEOC Request No. 05960127
(Dec. 19, 1996) (direct attack of manner in which OWCP personnel processed
an injury claim is a collateral attack). An attack of the merits of an
OWCP claim, or of the agency's action in representing its interests in the
OWCP forum, even by the submission of allegedly false information, does
not state a claim. See Pirozi v. Department of the Navy, EEOC Request
No. 05970146 (Oct. 23, 1998); Ward v. United States Parcel Service,
EEOC Request No. 05980036 (Mar. 19, 1998).
In the present case, complainant alleges in claims (1), (2), and (a) that
the OWCP Coordinator submitted false statements to DOL. These matters
are a collateral attack on the OWCP process and fail to state a claim.
Complainant should raise these matters within the OWCP process itself,
not through an EEO complaint. Accordingly, the agency's dismissal of
claims (1), (2), and (a) was proper.
Claims (b) and (c) also involve a collateral attack to the OWCP.
The altercation described by complainant in claim (c) was part of
the contact within the OWCP process, detailed in the report of contact
referenced in claim (a). Disputes concerning the agency's submission of
documents also is a matter rising from the OWCP process and pertaining to
the OWCP process; therefore claim (b) is more properly addressed within
that forum, not within the EEO process. Accordingly, claims (b) and
(c) also fail to state a claim.
CONCLUSION
Accordingly, the agency's dismissals are AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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 (S1199)
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:
February 4, 2000
____________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date Equal Employment Assistant
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 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.