01A22050_r
06-03-2002
Theodore W. Makse, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Theodore W. Makse v. Department of Veterans Affairs
01A22050
June 3, 2002
.
Theodore W. Makse,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A22050
Agency No. 200J-0541-2002100906
DECISION
Complainant filed a timely appeal with this Commission from a final agency
decision dated February 8, 2002, 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.
In his complaint, complainant alleged that he was subjected to
discrimination in reprisal for prior EEO activity when:
An agency Injury Compensation Specialist [E1] gave him false and
misleading information concerning his Office of Workers' Compensation
Program (OWCP) appeals; and
Complainant was not able to meet with [E1] face-to-face to discuss the
matters in claim 1.
In its final decision, the agency dismissed complainant's complaint for
failure to state a claim. The agency determined that claim 1 fails to
state a claim because it involves matters within the purview of the
OWCP. The agency also determined that claim 2 fails to state a claim
because a face-to-face meeting with the named agency official is not a
term, condition, or privilege of complainant's employment.
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).
In claim 1, complainant maintains that the agency's Injury Compensation
Specialist gave him false and misleading information concerning his
OWCP appeals. We note, however, that complainant does not indicate how
he was adversely affected by this purportedly false information, i.e.,
whether he failed to file an OWCP appeal or was late in filing, and,
therefore, he fails to state a claim. The Commission notes that to the
extent complainant is claiming that this false information resulted in
the denial of OWCP benefits, this allegation also fails to state a claim.
See Pirozzi v. Department of the Navy, EEOC Request No. 05970146 (October
23, 1998)(allegedly false statements made by agency to OWCP during OWCP's
processing of a workers' compensation claim goes to merits of compensation
claim); Hogan v. Department of the Army, EEOC Request No. 05940407
(September 29, 1994) (reviewing an allegation that agency officials
provided misleading statements to OWCP would require the Commission to
essentially determine what workers' compensation benefits the complainant
would likely have received); Reloj v. Department of Veterans Affairs, EEOC
Request No. 05960545 (June 15, 1998) (allegation 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).
Consequently, we find that claim 1 fails to state a claim.
In claim 2, complainant alleges that the agency Injury Compensation
Specialist failed to grant him a face-to-face meeting to discuss the
matter. We determine that claim 2 does not involve sufficient harm or
loss to complainant's terms, conditions, or privileges of employment to
render him aggrieved under EEO Regulations. Consequently, we find that
claim 2 fails to state a claim.
Accordingly, the Commission AFFIRMS the agency's dismissal of
complainant's complaint.
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
June 3, 2002
__________________
Date