0120083514
11-12-2008
Steven G. Coker, Complainant, v. Carlos M. Gutierrez, Secretary, Department of Commerce, Agency.
Steven G. Coker,
Complainant,
v.
Carlos M. Gutierrez,
Secretary,
Department of Commerce,
Agency.
Appeal No. 0120083514
Agency No. 085400127
DECISION
Complainant filed a timely appeal with this Commission from the
agency's decision dated July 24, 2008, 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. Upon review, the Commission finds that complainant's
complaint was properly dismissed.
Complainant was employed by the agency as a Supervisory Special Agent,
GS-13, with the National Oceanic and Atmospheric Administration (NOAA).
Effective March 2, 2007, complainant was removed from federal employment
by the agency. He appealed his removal to the Merit Systems Protection
Board (MSPB), asserting his removal was based on disability discrimination
and retaliation for whistleblower activity. In his appeal, complainant
also alleged that, on June 26, 2006, he was suspending from performing
his duties. On June 6, 2007, the agency and complainant entered
into an agreement settling the MSPB appeal. As part of the agreement,
complainant agreed to apply for disability retirement, which was approved
in September 2007. On August 31, 2007, complainant filed a Petition
for Enforcement of the Settlement Agreement with the MSPB alleging the
agency breached the agreement by failing to fulfill its obligation to
restore back pay. On December 28, 2007, an initial decision was issued
by a MSPB administrative judge finding the agency was not in breach of
the agreement. Complainant filed a petition for review to the full Board,
which was denied in a decision dated May 16, 2008.
On May 5, 2008, complainant initiated contact with an agency EEO counselor
and alleged he was being discriminated against because of his disability
(hearing loss). During counseling, complainant alleged that the agency
had ceased all negotiations on why he received a 25% pay cut and 25%
cut in his lump sum leave payment after his disability retirement in
September 2007. Complainant also alleged that he became aware that the
agency was intentionally delaying the processing of his Office of Workers'
Compensation Programs (OWCP) claim, which he submitted in March 2008.
Finally, the EEO counseling report indicated complainant asserted that
the agency was harassing him from January 2004 to present. When these
matters were not settled during counseling, complainant filed a formal
EEO complaint.
In his complaint dated June 12, 2008, complainant alleged that he
was subjected to discrimination on the basis of disability (hearing
loss) when: (1) in March 2007, he was removed from his position; (2)
in June 2006, he was suspended from performing his duties; (3) when,
because of a requirement that all Special Agents submit to a physical,
he was removed from duty status due to "an inability to perform [his]
duties" even though he could perform all required tasks of his position
and had been doing so for years; (4) following the execution of the
MSPB settlement agreement, he received a 25% pay cut and a 25% lump sum
leave payment after his disability retirement in September 2007; and
(5) in March 2008, he learned that the agency delayed in processing his
workers' compensation claim.1
With respect to claims 1 - 4, the Commission concludes that these are
properly dismissed from the EEO complaint process because they have been
resolved in the appeal before the MSPB. To the extent that complainant
is still asserting that the agency has not fully complied with the
terms of the settlement agreement, the Commission has no jurisdiction
over the enforcement of a settlement agreement made before the MSPB.
Further, because complainant raised the same matters before the MSPB,
he cannot now raise them in an EEO complaint. 29 C.F.R. � 1614.107(a)(4).
As for claim 5 regarding the processing of his worker's compensation
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 related to the
worker's compensation process is within the OWCP process.2 Therefore,
this claim is properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1)
for failure to state a claim.
Accordingly, the agency's final decision dismissing complainant's
complaint is affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (S0408)
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 (Z1008)
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
November 12, 2008
__________________
Date
1 The Commission has renumbered complainant's claims for ease of
reference.
2 The Commission notes that complainant's paperwork has been sent to
OWCP.
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0120083514
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
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0120083514