01985007
11-05-1998
Deborah K. Pueschel, Appellant, v. Alexis M. Herman, Secretary, Department of Labor, Agency.
Deborah K. Pueschel, )
Appellant, )
)
) Appeal No. 01985007
v. ) Agency No. DCR 98-FL-013
)
)
Alexis M. Herman, )
Secretary, )
Department of Labor, )
Agency. )
)
DECISION
On March 19, 1998, appellant filed an appeal of a February 9, 1998 letter
from the agency. Although the agency did not provide appellant with
appeal rights to the Commission, the Commission deems the February 9,
1998 letter of the agency as a final agency decision for purposes of
this decision.<1> Accordingly, the appeal is accepted in accordance
with EEOC Order No. 960.
Appellant filed a complaint against the agency's Office of Workers'
Compensation Programs (OWCP).<2> In her complaint, appellant alleged
that the OWCP unlawfully discriminated against her regarding a number of
claims she filed from 1974 to 1996.<3> Appellant submitted additional
information to the agency regarding her complaint in January 1998. In its
final decision, the agency determined that it had no jurisdiction over
charges of discrimination filed against appellant's employer and that
pursuant to the agency's regulations at 29 C.F.R. Part 33, appellant had
failed to establish that the decisions rendered by the OWCP regarding
her workers' compensation claims were motivated solely by the OWCP's
intent to discriminate against her.<4> Accordingly, the agency closed
appellant's complaint.
Appellant responded to the agency's action by filing the present appeal
and submitting a 128-page statement in support thereof. In an August
4, 1998 letter to the Commission, the agency reiterated that it had no
jurisdiction over the matter and that the agency's Directorate of Civil
Rights reviewed appellant's complaint under the agency's regulations
at 29 C.F.R. Part 33 which, the agency stated, provide for an appeal to
the agency's Deputy Assistant Secretary for Administration and Management.
EEOC Regulation 29 C.F.R.�1614.107(a) provides that the agency shall
dismiss a complaint or a portion of a complaint that fails to state a
claim under �1614.103 or �1614.106(a) or states the same claim that is
pending before or has been decided by the agency or Commission. 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 disability. 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).
A review of appellant's 128-page appeal reflects that appellant's
allegations involve concerns about the OWCP's administration of workers'
compensation benefits by the agency, an issue over which we have no
jurisdiction. Accordingly, we find that this matter does not relate to
an employment policy or practice and that the agency's dismissal of the
"complaint" was proper. See Reloj v. Veterans Administration, EEOC
Request No. 05960545 (June 15, 1998); Agustin v. Department of Labor,
EEOC Request No. 05960127 (December 19, 1996); Wheeler v. Department of
Labor, EEOC Appeal No. 01963976 (July 11, 1997); Stone v. Department of
Labor, EEOC Appeal No. 01950550 (February 9, 1996).
In addition, to the extent that appellant may be challenging the
OWCP's handling of her OWCP claims, such allegations amount to an
impermissible collateral attack on matters within the jurisdiction
of the OWCP forum and, as such, fail to state a claim. A collateral
attack involves a challenge to another forum's proceeding, i.e., 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 Story v. U.S. Postal Service, EEOC Request
No. 05960314 (October 18, 1996); Fisher v. Department of Defense, EEOC
Request No. 05931059 (July 15, 1994). The Commission has recognized
very narrow exceptions to the general prohibition on collateral attacks.
See Ellis v. U.S. Postal Service, EEOC Request No. 05920011 (March 12,
1992)(discriminatory application of the grievance process may state
a claim). Thus, for example, if an agency refused to accept grievances
from all persons within a protected class, such as race or disability,
that allegation would state a claim. In the case at hand, appellant
appears to be challenging the decisions of the OWCP and the manner in
which determinations were made by OWCP. Such assertions are tantamount
to a collateral attack on OWCP's decisions and appellant is not aggrieved
for purposes of the EEOC Regulations.
Accordingly, consistent with our discussion herein, the agency's final
decision is AFFIRMED.
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:
Nov. 5, 1998
DATE Ronnie Blumenthal, Director
1The agency noted that it was closing appellant's "complaint" and that
its action constituted the agency's "final action".
2Appellant also filed a complaint with her employer, the Department of
Transportation (DOT), wherein she asserted that DOT discriminatorily
denied her workers' compensation and disability benefits.
3Appellant first filed a workers' compensation claim in 1974 and
thereafter, she filed several other claims for physical and non-physical
injuries.
4The Department of Labor's (DOL) Regulations at 29 C.F.R. Part 33 concern
the enforcement of non-discrimination on the basis of disability.
The purpose of Part 33 is to effectuate �119 of the Rehabilitation,
Comprehensive Services, and Developmental Disabilities Amendments of
1978, which amended �504 of the Rehabilitation Act of 1973 to prohibit
discrimination on the basis of disability in programs or activities
conducted by Executive agencies or the U.S. Postal Service. Part 33
applies to all programs or activities conducted by the DOL, except
for complaints alleging violations of �504 with respect to employment.
See 29 C.F.R. ��33.1, 33.2 and 33.12. The DOL's regulations set forth
procedures for handling complaints arising under Part 33, including
issuance of a determination on the merits by the Deputy Assistant
Secretary for Administration and Management. See 29 C.F.R. �33.12.