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.