01a02703
07-06-2000
John E. Coleman III, Complainant, v. Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.
John E. Coleman III, )
Complainant, )
)
v. ) Appeal No. 01A02703
) Agency No. 99-1204
Togo D. West, Jr., )
Secretary, )
Department of Veterans Affairs, )
Agency. )
____________________________________)
DECISION
Complainant filed a timely appeal with this Commission from a final
agency decision (FAD) dismissing his complaint of unlawful employment
discrimination brought under the Age Discrimination in Employment Act
of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq., and
Section 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. �
791 et seq.<1> We accept the appeal pursuant to 64 Fed. Reg. 37,644,
37,659 (1999) (to be codified at 29 C.F.R. � 1614.405).
At the conclusion of EEO counseling, complainant, a former employee,
filed a formal complaint alleging that he was subjected to discrimination
on the bases of age and disability when:
Agency officials submitted discriminatory documents to the Office of
Workers Compensation Programs (OWCP) regarding his February 1997 injury
claim; and,
Agency officials deleted medical documentation from his OWCP files.
In his formal complaint, complainant further claimed that he was
improperly �directed to retire� from agency employment.
In its FAD, the agency dismissed claims (1) and (2) for failure to state
a claim finding that it constituted an impermissible collateral attack
on OWCP claims processing. Alternatively, the agency also found that
complainant raised essentially the same matters in a prior complaint.
The FAD also indicated that complainant's �forced retirement� claim would
not be addressed because, he failed to include it in his formal complaint,
although he raised it during EEO counseling.
On appeal, complainant argues that the agency erred in reaching the
determinations in the FAD, contending that the agency took no action
on his prior complaints, and that his claim of forced retirement was
improperly excluded from consideration.
In response, the agency repeats its finding that the complainant had
previously raised the OWCP processing claims, and that it is also a
collateral attack on the OWCP process, citing Horvath v. Department of
the Navy, EEOC Request No. 05960780 (October 23, 1998). Furthermore,
the agency again argues that it properly disregarded complainant's forced
retirement claim, but noted that even if this claim were considered,
it would have been dismissed because complainant had filed a mixed
case complaint regarding his removal from the agency because of his
disability (Complaint No. 98-4033), and that his �forced retirement�
claim was �inextricably intertwined� in the removal claim.
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). More specifically, the
Commission has further held that an EEO complaint alleging discrimination
in connection with a worker's compensation claim before OWCP states a
claim within the Commission's jurisdiction only in certain circumstances.
See Schultz v. U.S. Postal Service, EEOC Request No. 05950173 (September
26,1996); Hogan v. Department of the Army, EEOC Request No. 05940407
(September 29, 1994). A complainant may state a claim by alleging that
the agency discriminated in the processing of the worker's compensation
claim. See Horvath, supra. Where a complainant alleges, however, that
an agency discriminated in a manner pertaining to the merits of the
worker's compensation claim, the complaint does not state an EEO claim.
Horvath, EEOC Request No. 05960780. Such a claim is an impermissible
collateral attack on the worker's compensation process. Lau v. National
Credit Union Administration, EEOC Request No. 05950037 (September 8,
1994) (a claim that the agency presented misleading or false information
in response to a claim for OWCP benefits must be raised in the workers'
compensation forum).
Regarding claims (1) and (2), complainant contends that OWCP denied his
claim because of the information provided, or not provided, by the agency.
The proper forum for complainant to have raised his challenge was in the
workers' compensation forum. Therefore, we determine that the agency
properly dismissed claims (1) and (2) for failure to state a claim
pursuant to the regulation set forth at 64 Fed. Reg. 37,644, 37,656
(to be codified as and hereinafter cited as 29 C.F.R. � 1614.107(a)(1)),
and we AFFIRM the agency's DISMISSAL of these claims.<2>
Regarding complainant's forced retirement claim, the Commission determines
that this matter was included in his formal complaint, denoted as
�directed to retire.� However, as set forth in the agency's response,
we nonetheless agree that this claim is properly dismissed because it
is inextricably intertwined with the removal claim in complainant's
mixed case complaint No. 98-4033, accepted by the agency on November
18, 1998, which, according to the agency's response, is still pending
a final decision.
Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter
cited as 29 C.F.R. � 1614.107(a)(1)) provides that the agency shall
dismiss a complaint that states the same claim that is pending before
or has been decided by the agency or Commission.
A review of the record confirms that the mixed case complaint alleges
that complainant was improperly removed because of his disability, and
includes extensive references to those events underlying the instant
forced retirement claim, which involves complainant being advised to
apply for disability retirement when a lower back disorder apparently
rendered him unable to work. The Commission determines that the removal
claim and the forced retirement claim are inextricably intertwined,
and that the removal claim is the subject of a pending complaint.
In conclusion, we find that the agency's decision to dismiss the complaint
was proper and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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:
July 6, 2000
____________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
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.
2In light of this determination, we will not consider the agency's
alternative grounds of dismissal.