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.
??
??
??
??
2
0120073575
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013