Dorothy Harris, Complainant,v.Hershel W. Gober, Acting Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionDec 4, 2000
01A04714 (E.E.O.C. Dec. 4, 2000)

01A04714

12-04-2000

Dorothy Harris, Complainant, v. Hershel W. Gober, Acting Secretary, Department of Veterans Affairs, Agency.


Dorothy Harris v. Department of Veterans Affairs

01A04714

December 4, 2000

.

Dorothy Harris,

Complainant,

v.

Hershel W. Gober,

Acting Secretary,

Department of Veterans Affairs,

Agency.

Appeal No. 01A04714

Agency No. 200I-2209

DECISION

Complainant filed a timely appeal with this Commission from an

agency decision pertaining to her complaint of unlawful employment

discrimination in violation of Section 501 of the Rehabilitation Act

of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.<1>

The Commission accepts the appeal in accordance with 29 C.F.R. � 1614.405.

On January 13, 2000, complainant contacted the EEO office regarding claims

of discrimination based on disability. Complainant stated that on March

7, 1997, she tripped on the blade of a forklift, injuring her hand and

knees; and that the only treatment she received was the cleaning of her

hand and knees, before being sent back to work. Thereafter, complainant

went to her own doctor and was told she needed surgery. When she applied

for workers' compensation, the Office of Workers' Compensation (OWCP)

denied her claim. Informal efforts to resolve complainant's concerns were

unsuccessful. On March 17, 2000, complainant filed a formal complaint.

In its May 22, 2000 decision, the agency framed the complaint as follows:

1) On March 7, 1997, complainant sustained an on-the-job injury for which

she received treatment in the form of cleaning her hand and knees and

appropriate notification was forwarded to the U.S. Department of Labor

Office of Workers' Compensation Programs.

Subsequently, complainant filed a recurrence claim with OWCP on March

30, 1998.

2) On May 11, 1999, OWCP denied complainant's claim for benefits related

to a recurrence of her March 7, 1997 injury. Complainant claims that

she should not be held responsible for payment of the subsequent medical

services because they resulted from an on-the-job injury.

The agency dismissed the complaint for failure to state a claim.

The agency determined that the essence of complainant's complaint is her

disagreement with the OWCP's decision. As such, the agency determined

that complainant was impermissibly using the EEO process to �collaterally

attack� a decision by the Department of Labor.

On appeal, through her attorney, complainant argues that the agency has

failed to accommodate her disability, by requiring her to work around

radios and other loud noises which cause her frustration and nervous

reactions. Complainant contends that the failure to accommodate her

disability �directly related to her injury....�

In response, the agency argues that although complainant on appeal

�characterizes the complaint in much broader terms�, a careful reading of

the formal complaint and the Counselor's Report shows that the complaint

only encompasses one claim: the denial of complainant's OWCP claim.

In addition, the agency contends that complainant did not raise the

accommodation issue with the EEO counselor, and therefore if the claim

was included in the complaint it would have been dismissed on the

grounds that it was not counseled or related to the matter raised with

the EEO Counselor.

The Commission has held that an employee cannot use the EEO complaint

process to lodge a collateral attack on another proceeding. See Wills

v. Department of Defense , EEOC Request No. 05970596 (July 30, 1998);

Kleinman v. United States Postal Service, EEOC Request No. 05940585

(September 22, 1994); Lingad v. United States Postal Service, EEOC

Request No. 05930106 (June 25, 1993). The proper forum for complainant

to have raised her challenges to actions which occurred during the OWCP

processing and investigation of her injury was during the OWCP process.

It is inappropriate to now attempt to use the EEO process to collaterally

attack the Department of Labor's decision denying her OWCP claim.

Based on a review of the record, we find that the agency's dismissal of

the complaint was proper. Complainant's assertion on appeal, that the

agency failed to accommodate her disability, is not reflected anywhere in

the record. In her initial contact with the EEO Counselor, the Counselor's

Report, and the formal complaint, complainant only raises the denial of

her OWCP claim. Her requested remedy, that the agency pay her doctor's

bills and for surgery, also appear to reflect that the OWCP matter was

the only claim raised. Even on appeal, while raising the accommodation

issue for the first time, complainant's attorney appears to do so in an

effort to explore the relationship of her disability to the treatment

she received. Therefore, we find that the agency properly dismissed

the complaint.

Finally, complainant is advised that if she wishes to pursue, through

the EEO process, the reasonable accommodation claim raised for the first

time on appeal, she should initiate contact with an EEO Counselor thereon.

Accordingly, the agency's decision to dismiss the complaint was proper

and is hereby AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0900)

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

December 4, 2000

__________________

Date

1On November 9, 1999, revised regulations governing the EEOC's federal

sector complaint process went into effect. These regulations apply to all

federal sector EEO complaints pending at any stage in the administrative

process. Consequently, the Commission will apply the revised regulations

found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.