0120181543
08-24-2018
Cleveland C,1 Complainant, v. Peter O'Rourke, Acting Secretary, Department of Veterans Affairs (Veterans Health Administration), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Cleveland C,1
Complainant,
v.
Peter O'Rourke,
Acting Secretary,
Department of Veterans Affairs
(Veterans Health Administration),
Agency.
Appeal No. 0120181543
Agency No. 200306292018101499
DECISION
Complainant timely appealed with the Equal Employment Opportunity Commission ("EEOC" or "Commission") from the Agency's March 12, 2018 dismissal of 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.
BACKGROUND
At the time of events giving rise to this appeal, Complainant was a former Agency employee (disability retirement effective May 30, 2005), having previously worked as a Painter, WG-9, at the Veterans Affairs Medical Center ("VAMC") in New Orleans, Louisiana.
On January 18, 2017, Complainant filed a Formal Complaint, alleging that the Agency subjected him to discrimination based on reprisal for engaging in prior protected EEO activity when:
From 2005 and ongoing, the Agency failed to provide information and/or sent false information to the Department of Labor ("DOL") concerning his claim filed with the Office of Workers Compensation Programs ("OWCP").
Complainant incurred an injury while on the job, and as a result, qualified for disability benefits through the Office of Workers Compensation Programs ("OWCP") within the Department of Labor ("DOL"). Upon his retirement from the Agency, effective May 30, 2005, Complainant was also eligible for Federal Employee Compensation Act ("FECA") benefits, which are processed through OWCP.
In May 2005, Complainant asked his supervisor ("S1") to process his FECA benefits, and she failed to do so. Once he left the Agency, Complainant alleges that S1, the Facilities Management Service Line Executive ("SE"), and the Service Chief ("SC") did not provide him with assistance with retirement matters. Complainant further alleges that when DOL sent requests for information about his OWCP claim, they either did not respond or falsely informed the DOL that Complainant had not been injured on the job. As a result, Complainant was allegedly denied FECA payments for 12 years.
Complainant states that he first learned about the alleged discriminatory act on December 5, 2017, when OWCP notified him that he had been granted FECA benefits from June 1, 2005 forward. However, Complainant also lists correspondence related to his benefits dated March 23, 2017, and September 7, 2017, as well as three benefit request forms submitted in 2005 and 2006. On June 6, 2017, Complainant received a response from the Office of Personnel Management ("OPM") instructing him to address his concerns about OWCP benefits (which encompass FECA benefits) with OWCP. Complainant's prior EEO activity also indicates prior knowledge.
The referenced prior EEO activity originated with five complaints that Complainant filed between February 14, 2003 and November 13, 2004.2 After receiving a Proposed Termination, Complainant left the Agency effective May 30, 2005, while his complaints were still pending. On November 9, 2005, Complainant and the Agency obtained resolution by entering into a settlement agreement. Some provisions in the settlement agreement would assist Complainant with obtaining disability benefits through OWCP. For instance, the Agency ensured that the notice of termination was expunged from his records and that personnel file reflected that he retired (later modified to disability retirement). On August 1, 2013, Complainant initiated additional EEO activity, alleging the Agency breached the settlement agreement and retaliated against him, alleging, in relevant part, that he had been "blacklisted" from receiving assistance, and the Agency failed to take steps so he could collect OWCP benefits.3
The Agency dismissed Complainant's complaint, citing failure to state a claim in accordance with 29 C.F.R. � 1614.107(a)(1), and on the alternate grands of untimely contact with an EEO counselor, as required under � 1614.107(a)(2).
ANALYSIS AND FINDINGS
In relevant part, 29 C.F.R. � 1614.107(a)(1) provides that an Agency shall dismiss a complaint that fails to state a claim. The Commission has generally held that complaints involving other administrative proceedings do not state a claim within the meaning of its regulations, as they constitute impermissible attempts to lodge a collateral attack. See Wills v. Dep't of Defense. EEOC Request No. 05970596 (July 30, 1998) other citations omitted. A claim that can be characterized as a collateral attack, by definition, involves a challenge to another forum's proceeding, such as disability payments or related processes administrated by the Department of Labor ("DOL"). See Fisher v. Dep't of Defense, EEOC Request No. 05931059 (July 15, 1994).
The Commission has long rejected complaints like this one, where the alleged discriminatory act is attributed to an Agency employee, but ultimately impacts the processing of claims that fall outside our jurisdiction. Actions that impacted the Office of Workers Compensation Programs ("OWCP") and/or the Federal Employee Compensation Act ("FECA") (including but not limited to issuing payments and determining eligibility) are processed through OWCP, part of DOL. The EEOC does not have jurisdiction over DOL administrative processes.
In Hogan v. Department of the Army, we reasoned that an allegation that agency officials provided misleading statements to OWCP was an attempt to lodge a collateral attack because reviewing such a claim would require the Commission to determine what workers' compensation benefits the complainant would likely have received, which is outside EEOC authority. EEOC Request No. 05940407 (Sept. 29, 1994). Likewise, in Bell v. Dep't of Transportation, EEOC Appeal No. 01991806 (Jan. 11, 2001), the complainant alleged that the agency had discriminated against her because it had failed to ensure that records submitted to the DOL related to her OWCP claim were accurate and complete. She also alleged that the agency falsified documents in the process of controverting her claim. The Commission noted that it has consistently held not actionable claims that the agency discriminated in a manner pertaining to the merits of the workers' compensation claim, including submitting paperwork containing allegedly false information. See also Schneider v. United States Postal Serv., EEOC Request No. 05A01065 (Aug. 15, 2002) (rejecting a claim that the Agency's delay in processing OWCP paperwork constituted harassment). Thus, Complainant's allegation that the Agency "failed to provide information and/or sent false information" relating to his disability benefits constitutes an impermissible attempt at a collateral attack.
Given that Complainant's complaint unequivocally fails to state a claim, we decline to discuss the Agency's alternate grounds for dismissal, other than to note our agreement that Complainant failed to make timely contact with an EEO Counselor pursuant to 29 C.F.R. � 1614.107(a)(2).
Additionally, while Complainant claims to have suffered damages as a result of the incident at issue, it is well established that allegations that fail to state a claim cannot be converted into a viable claim merely because the complainant requests compensatory damages as a remedy. Ulanoff v. United States Postal Serv., EEOC Request No. 05950396 (Jan. 26, 1996); Shrader v. Dep't of Agriculture, EEOC Appeal No. 01961499 (Nov. 3, 1997).
CONCLUSION
Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. See 29 C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 � VII.B (Aug. 5, 2015). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 (S0610)
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 (Z0815)
If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant's Right to File a Civil Action for the specific time limits).
FOR THE COMMISSION:
______________________________ Carlton M. Hadden's signature
Carlton M. Hadden, Director
Office of Federal Operations
August 24, 2018
__________________
Date
1 This case has been randomly assigned a pseudonym which will replace Complainant's name when the decision is published to non-parties and the Commission's website.
2 Agency Case Nos. 200L06292003101173, 200L06292004100828, 200L05292004101651, 200L06292004104390, and 200L06292004104398; EEOC Appeal Nos. 0120052529 and 0120054044 (Nov. 17, 2005).
3 EEOC Appeal No. 0120140354 (Oct. 3, 2015) reconsideration denied EEOC Request No. 0520160048 (Jan. 29, 2016) (Agency Case No. 200L06292006100133) (finding no breach).
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