Frederick J. Yozzo, Complainant,v.Michael W. Wynne, Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity CommissionFeb 5, 2009
0120073575 (E.E.O.C. Feb. 5, 2009)

0120073575

02-05-2009

Frederick J. Yozzo, Complainant, v. Michael W. Wynne, Secretary, Department of the Air Force, Agency.


Frederick J. Yozzo,

Complainant,

v.

Michael W. Wynne,

Secretary,

Department of the Air Force,

Agency.

Appeal No. 0120073575

Agency No. 5W1C06006

DECISION

Complainant filed an appeal with this Commission from the agency's

decision dismissing his 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., and the Age Discrimination

in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.1

In a complaint dated April 20, 2006, complainant, a Maintenance

Mechanic Supervisor, WS-4749-09, in the 20th Civil Engineer Squadron,

Heavy Repair Section, Vertical Repair Shop, Shaw Air Force Base (AFB),

alleged that he was subjected to discrimination on the bases of disability

(leg/hand/back/stress/pain), and age (62) when2, in January and February

2006, the Civilian Personnel Office at Shaw AFB did not provide him

with a list of physicians who would treat him under the Federal Workers

Compensation Program provisions.3

In her "Order of Dismissal" dated July 30, 2007, the AJ noted that

complainant had initially raised other claims of discrimination which were

dismissed by the agency for being untimely or moot. The AJ reviewed these

dismissals and found that they were proper. Additionally, the AJ found

that complainant is not an "aggrieved" employee based on his perceptions

of the inadequacy of assistance and information related to his workers'

compensation claim provided to him by staff members of the Civilian

Personnel Office. The AJ found that the claim is essentially a collateral

attack on the workers' compensation benefits program administered by

the OWCP. Second, the AJ found that complainant's March 8, 2006, EEO

counselor contact was untimely pursuant to 29 C.F.R. � 1614.105(a)(1).

The AJ found that it is clear that complainant believed or reasonably

suspected that he was the victim of some form of discrimination or

wrongdoing several months prior to March 8, 2006. The AJ therefore,

dismissed the entire complaint, and the agency subsequently issued

a final order in the case, implementing the AJ's decision dismissing

the complaint.

Upon review, the Commission agrees that the alleged failure to provide a

list of physicians constitutes an impermissible collateral attack on the

OWCP process. 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 his challenges to actions which occurred during the OWCP

process was at that proceeding itself.4 Therefore, the Commission finds

that complainant's claim was properly dismissed pursuant to 29 C.F.R. �

1614.107(a)(1). Accordingly, the agency's final order is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1208)

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 77960,

Washington, DC 20013. 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 (S0408)

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 (Z1008)

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 from the Court that

the Court appoint an attorney to represent you and that the Court also

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 with

the Court 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

February 5, 2009

__________________

Date

1 The record indicates that on July 30, 2007, an Administrative Judge (AJ)

of the EEOC issued an "Order of Dismissal" in this case. Subsequently, on

August 9, 2007, complainant filed a premature appeal to the Commission,

on which he indicated that the agency had not taken final action in

the case. The agency then took final action on September 7, 2007.

Under these circumstances, we exercise our discretion to accept this

appeal which was originally filed prematurely.

2 Complainant raised other issues which were dismissed by the agency

as moot or untimely. Complainant does not, on appeal, specifically

challenge the dismissals of these issues, and therefore, they are not

addressed herein.

3 We note that complainant did not allege or show that the responsible

agency officials treated individuals outside of complainant's protected

classes more favorably by willingly providing them with a list of

physicians. Complainant explained in his formal complaint that the

essence of his claim is as follows: "The compliant [sic] is with the Air

Force and the Civilian Personnel Office at Shaw AFB for not providing

me with the correct information on how and where to find a Doctor that

would accept the Worker Compensation Federal."

4 As we find that the issue at hand is not within the jurisdiction of

the Commission because it fails to state a claim, we need not address

the additional question of whether complainant sought EEO counseling in

a timely fashion.

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0120073575

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013