01983040
03-11-1999
Clarence J. Thurmond, Appellant, v. Alexis M. Herman, Secretary, Department of Labor, Agency
Clarence J. Thurmond, )
Appellant, )
) Appeal No. 01983040
v. ) Agency No. 98-CO-005
)
Alexis M. Herman, )
Secretary, )
Department of Labor, )
Agency )
)
)
DECISION
INTRODUCTION
On March 6, 1998, appellant initiated an appeal to the Equal Employment
Opportunity Commission (Commission) concerning his August 30, 1994,
(amended January 30, 1995) complaint of unlawful employment discrimination
in violation of Title VII of the Civil Rights Act of 1964, as amended, 42
U.S.C. Section 2000e et seq. Appellant contends the agency constructively
dismissed his complaint by failing to issue a final agency decision
per his requests. Pursuant to EEOC Regulation 29 C.F.R. �1614.401(a)
whereby a complainant may appeal an agency's final decision, or the
agency's dismissal of all or a portion of a complaint, the appeal is
accepted by the Commission in accordance with the provisions of EEOC
Order No. 960.001.
ISSUE PRESENTED
The issue presented herein is whether the Commission has jurisdiction.
BACKGROUND
Appellant filed a complaint of discrimination dated August 30, 1994,
against the Office of Workers' Compensation Program (OWCP), Department of
Labor (DOL), based on psychological disability (Post Traumatic Stress
Disorder and Severe Depression) when, on August 10, 1994, an OWCP
Vocational Rehabilitative Specialist (S-1) denied appellant's request
to participate in a Victim's Assistance Program, closed his vocational
rehabilitation case, and denied him paralegal training courses, and when a
Vocational Rehabilitation Counselor (S-2) allegedly disclosed appellant's
psychological condition to prospective employers. On January 30, 1995,
appellant amended his complaint to include a complaint of discrimination
based on age (DOB 6-23-41) when on approximately December 14, 1994,
S-1 allegedly made reference to appellant's age as a negative factor
in any potential employment as a police officer. Both complaints were
addressed to the Director, Civil Rights Center, DOL.
According to appellant's January 30, 1995, complaint, appellant was
employed by the Veterans Administration Medical Center, Denver, Colorado,
as a police officer from March 1987, to July 14, 1994. Appellant was
injured on August 14, 1992. OWCP accepted his claim based on Post Trauma
Stress Disorder on May 10, 1993.
The DOL Directorate of Civil Rights informed appellant by letter dated
December 7, 1994, that his claims raised questions of jurisdiction and
were being reviewed by the Office of the Solicitor.
On March 6, 1998, appellant initiated an appeal to the Commission
contending the agency constructively dismissed his complaint by failing
to issue a final agency decision.
The Commission notified the agency on March 19, 1998, and April 24,
1998, of appellant's appeal. The agency responded on August 6, 1998,
that appellant's complaint against the DOL's OWCP was covered under
DOL regulations implementing Section 504 of the Rehabilitation Act
of 1973, set forth at 29 C.F.R. �33, which provides for an appeal to
DOL's Deputy Assistant Secretary for Administration and Management.
The agency further stated that the DOL Directorate of Civil Rights was,
at that time, in the process of accepting for investigation appellant's
complaints of discrimination.
ANALYSIS AND FINDINGS
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;
�1614.106(a). The Commission's federal sector case precedent has long
defined as "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 the present case, the
Commission finds the appellant's allegations concern the administration
of OWCP benefits and do not relate to an employment policy or practice.
Appellant's complaints are beyond the purview of 29 C.F.R. �1614.
An allegation can be characterized as a collateral attack where
it involves a challenge to another forum's proceedings, such as the
grievance process, the EEO process in a separate case, the unemployment
compensation process, the workers' compensation process, the tort claims
process, and so forth. See Fisher v. Department 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
24, 1993)(challenge to evidentiary ruling in grievance process fails to
state a claim as an EEO complaint).
The Commission recognizes 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). For example, where
an agency refused to accept grievances from persons within a protected
class based on race, sex, or disability, the allegation would state
a claim. The Commission has also held that allegations of failure to
provide necessary information to the Department of Labor to process a
worker's compensation claim due to discrimination states a claim. O'Neal
v. United States Postal Service, EEOC Request No. 05900620 (August 30,
1990).
These cases involve actions taken by a complainant's direct employer,
rather than by the agency charged with the adjudication of OWCP claims.
Here, appellant's allegations of discrimination are directed against OWCP.
Appellant is neither an employee nor an applicant for employment with the
OWCP. The Commission finds appellant's appeal amounts to a prohibited
collateral attack on matters within the jurisdiction of OWCP and does
not state a claim under EEOC Regulations.
CONCLUSION
Appellant's appeal is DISMISSED for lack of jurisdiction.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
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 this
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 this 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 this 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 this 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
March 11, 1999
________________________ _______________________
DATE Ronnie Blumenthal, Director
Office of Federal Operations