01972845
08-27-1999
Thomas J. Haynes Appellant, v. Louis Caldera, Secretary, U.S. Department of the Army, Agency.
Thomas J. Haynes )
Appellant, )
) Appeal No. 01972845
v. ) Agency No. 95-11F0560
)
Louis Caldera, )
Secretary, )
U.S. Department of the Army, )
Agency. )
)
DECISION
Appellant timely initiated an appeal of a final agency decision (FAD)
concerning his complaint of unlawful employment discrimination on the
basis of reprisal (prior EEO activity), in violation of Title VII of
the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.
Appellant alleges he was discriminated against when his supervisor made
formal written statements to the Department of Labor that he was not
injured on the job and refused to complete and forward the necessary
paperwork certifying the injury. The appeal is accepted in accordance
with EEOC Order No. 960.001. For the following reasons, the agency's
decision is AFFIRMED.
During the relevant time, appellant was employed as a Maintenance Worker,
WG-4749-08, in the Maintenance Division, Directorate of Public Works,
Headquarters III Corps & Fort Hood, Fort Hood, TX. Appellant alleged that
in August 1995, he initiated an EEO complaint against his Supervisor which
alleged discrimination on the bases of race (white), age (52) and physical
disability (bad back) because he was not selected for a promotion.
Appellant alleged that on August 21, 1995, he injured his back while
installing a �swamp cooler� at the facility. He maintained that he
reported the injury to his acting supervisor within four calendar days
because his supervisor was on leave. On August 28, 1995, appellant
filled out a Notice of Traumatic Injury and Claim for Continuation of
Pay/Compensation with the Office of Worker's Compensation, Department of
Labor (DOL)(CA-1). Appellant retained statements from the two individuals
who were working with him on August 21, 1995. In essence, they reported
that although they had not explicitly seen appellant injure himself,
they heard him remark that his back hurt.
Appellant's supervisor controverted appellant's claim that he had been
injured on the job. Specifically, the Supervisor attached a letter to
appellant's CA-1 which stated that he believed that appellant had made
up the injury to �cover up a different problem.�
The supervisor then added,
this employee put in for a job promotion which he did not get. After not
getting the promotion, he filled an EEO complaint saying that he was
not selected for the job based on his age. In the complaint he stated
that he had physical limitations which were disregarded by me as his
supervisor in assigning work to him....I was not aware of any handicap
that this employee had so I produced a copy of his job description and
a D.A. 17 to be filled out by his doctor stating any physical problems
that would prevent this man from doing his job since there were no
limitations. He claimed he was injured on the job on the 18th day of
Aug 95. This employee wasn't even at work on the 18th. When this was
pointed out to him he changed the date to the 20th day of August 95.
The 20th was a Sun[day] and he wasn't working on that date either.
On October 30 and 31, 1995, the DOL sent letters to appellant informing
him that his claim was insufficient to establish that he sustained
an injury on the job on August 21, 1995. In its letter, the DOL
requested that appellant respond to a letter which requested additional
information about the injury, and asked that a physician verify his claim.
On November 22, 1995, the DOL notified appellant that his claim had
been disallowed because he had failed to respond to its October 30 and
October 31, 1995 requests for additional information.
Appellant testified that the agency failed to submit necessary documents,
including witness statements, to the DOL. He testified that the
Supervisor continued to deny the nature and existence of appellant's
injury. Appellant testified that this was in retaliation for his prior
EEO activity.
On January 31, 1996, appellant filed an EEO complaint with the agency
as referenced above. At the conclusion of the investigation, the
investigator issued a recommended finding of discrimination, citing the
Supervisor's reference to appellant's prior EEO complaint in his statement
to DOL as evidence of a retaliatory bias. The agency then furnished
appellant with a right to request a hearing or immediate final decision.
Appellant did not respond.
On January 21, 1997, the agency issued a final decision finding no
discrimination. In its decision, the agency found that appellant had
established a prima facie case of reprisal discrimination, but that the
agency had articulated legitimate, nondiscriminatory reasons for its
actions. Specifically, the Supervisor testified that he controverted
appellant's claim because appellant missed the deadline by three weeks,
supporting witnesses did not actually witness the accident, but merely
reiterated appellant's story, and the date of the injury was in question.
The Supervisor testified that appellant originally reported that the
injury occurred on August 18, 1995, and then reported that it had
occurred on August 21, 1995. The supervisor also testified that he
believed appellant was �mentally distraught� over not being selected
for a promotion. He testified that he believed this because appellant
often discussed his injury along with statements that he was �robbed of
a job�. The supervisor also testified that he supplied the statement
to DOL because appellant's physician did not attribute appellant's pain
to a back injury but rather reported that there were calcium deposits
on his back as a result of natural aging.
On appeal, appellant argues that he was in fact injured on that date,
that the supervisor made false statements to the DOL, and failed to supply
necessary documentation to the DOL in reprisal for his prior EEO activity.
In response to appellant's appeal, the agency argues that appellant's
claim for workers compensation was denied by the DOL because he failed
to submit necessary documentation.
As a preliminary matter, we note that on February 20, 1996, the agency
accepted appellant's complaint as referenced above. We further note
that appellant's complaint raises two allegations regarding his workers'
compensation claim: 1a) the agency provided an official statement that
appellant did not get injured; and 1b) that agency refused to complete
and forward the necessary paperwork certifying that appellant was injured
on the job.
An allegation that can be characterized as a collateral attack, by
definition, involves a challenge to another forum's proceeding, e.g.,
the grievance process, the unemployment compensation process, the workers,
compensation process, and so on. See, e.q., Fisher v. Dept. of Defense,
EEOC Request No. 05931059 (July 15, 1994) (challenge to agency's appeal
within the workers' compensation process fails to state a claim as an
EEO complaint); Lingad v. United States Postal Service, EEOC Request
No. 05930106 (June 23, 1994) (challenge to evidentiary ruling in grievance
process fails to state a claim as an EEO complaint).
The Commission has recognized very narrow exceptions to the general
prohibition on collateral attacks. See Ellis v. United States Postal
Service, EEOC Request No. 05920011 (March 12, 1992)(discriminatory
application of grievance process may state a claim). Thus, for example,
if an agency refused to accept grievances from all persons within a
protected class, that allegation would state a claim. We previously
have held that an allegation related to the discriminatory failure to
process a workers' compensation claim by failing to provide necessary
information to the Department of Labor states a claim. O'Neal v. United
States Postal Service, EEOC Request No. 05900620 (August 30, 1990).
However, where a complainant alleges that the agency discriminated in
manner pertaining to the merits of the worker's compensation claim, for
example, by submitting paperwork containing allegedly false information,
then the complaint does not state an EEO claim. Pirozzi v. Dept. 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).
Although the agency accepted and investigated appellant's complaint, we
find that appellant's allegation (1a) represents a collateral attack on
the manner in which the agency presented its position in the OWCP forum,
and should have been dismissed for that reason. See Lau v. Nat'l Credit
Union Administration, EEOC Request No. 05950037 (March 18, 1996)(proper
forum regarding the manner in which the agency represented its position
in the OWCP forum is the workers compensation process). As such, we
find appellant was not aggrieved for the purpose of EEOC Regulations
when the agency submitted a statement to the DOL, which allegedly led
to the denial of him claim.
However, we do find that appellant's allegation (1b) states a claim
under our regulations because it alleges discrimination by the agency
in withholding documents, and not those charged with adjudicating the
workers compensation claims. See O'Neal, EEOC Request No. 05900620.
Nonetheless, after a careful review of the record, based on McDonnell
Douglas v. Green, 411 U.S. 792 (1973), the Commission agrees with the
agency that appellant failed to prove, by a preponderance of the evidence,
that the agency's articulated reasons for its actions were pretext for
reprisal discrimination. In fact, we find insufficient evidence in
the record that the agency failed to supply necessary documentation,
such as witness statements, to the DOL, as appellant alleges.
Furthermore, although the supervisor referenced appellant's prior EEO
complaint in his statement to DOL, we find insufficient evidence of a
retaliatory motive. Upon review of the context in which the statement was
made, we find that the supervisor noted appellant's prior EEO complaint as
a statement of fact, and was not a gratuitous effort to hurt appellant's
credibility in the eyes of the DOL.
Therefore, after a careful review of the record, including arguments and
evidence not specifically addressed in this decision, we AFFIRM the FAD.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in the
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive the
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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 the decision.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive the decision. To ensure that your civil action is
considered timely, you are advised to file it WITHIN THIRTY (30) CALENDAR
DAYS from the date that you receive the decision or to consult an attorney
concerning the applicable time period in the jurisdiction in which your
action would be filed. 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 (Z1092)
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:
8/27/99
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations