0120072412
01-09-2009
Joseph M. Bellino,
Complainant,
v.
Mary E. Peters,
Secretary,
Department of Transportation,
Agency.
Appeal No. 0120072412
Agency No. 2006-20562-FAA-04
DECISION
Complainant filed a timely appeal with this Commission from a final
agency decision, dated April 11, 2007, dismissing a formal complaint of
unlawful employment discrimination in violation of Title VII of the Civil
Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq. The
Commission accepts the appeal in accordance with 29 C.F.R. � 1614.405.
During the relevant time, complainant worked as an Air Traffic Control
Specialist (ATCS) at O'Hare Air Traffic Control Tower in Chicago,
Illinois. Complainant suffered an on-the-job injury and received
Office of Workers' Compensation (OWCP) payments from September 2002
until he returned to work in October 2005. Upon his return, however,
complainant was unable to work a full 40-hour week. Consequently,
he took Leave Without Pay (LWOP) and filed a claim with OWCP. In May
2006, he was informed by the Department of Labor that payment could
not be made to him until further evidence of his injury was received.
The Claims Examiner noted that the agency submitted documentation stating
that complainant was working within the listed restrictions. Complainant
believed that the Air Traffic manager provided false information to OWCP,
and contacted the EEO office.
Informal efforts to resolve complainant's concerns were unsuccessful.
On June 26, 2006, complainant filed a formal complaint based on reprisal.
In the instant final decision, the agency framed the claim as follows:
On or about May 16, 2006, complainant's OWCP payments were
discontinued based on false information provided by FAA
management.
The agency dismissed the formal complaint for failure to state a claim.
The agency reasoned that by attacking the manner in which the agency
represented its position in the OWCP process, complainant has presented
a collateral attack.
On appeal, complainant denies that he is making a collateral attack,
or attempting to restrict the agency's right to represent its position
in the OWCP forum. Complainant argues that "the agency does not have
the right to report knowingly false information to OWCP . . . ."
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in
relevant part, that an agency shall dismiss a complaint that fails to
state a claim. An agency shall accept a complaint from any aggrieved
employee or applicant for employment who believes that he or she has been
discriminated against by that agency because of race, color, religion,
sex, national origin, age or disabling condition. 29 C.F.R. �� 1614.103,
.106(a). The Commission's federal sector case precedent has long defined
an "aggrieved employee" as one who suffers a present harm or loss with
respect to a term, condition, or privilege of employment for which
there is a remedy. Diaz v. Department of the Air Force, EEOC Request
No. 05931049 (April 21, 1994).
The Commission notes that, on appeal, complainant clearly states: "in
this instant charge my claim is that [the agency] provided knowingly
false information that resulted in a [sic] OWCP rendering a ruling that
harmed my financial position and entitlement." Further, complainant
asserts that, but for the agency's false representations, the OWCP would
have rendered a different decision. We agree that the instant complaint
constitutes an impermissible collateral attack.
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 during that proceeding. It is inappropriate to now attempt
to use the EEO process to collaterally attack actions which occurred in
the OWCP forum.
Moreover, the alleged agency action was not of a type reasonably likely
to deter complainant or others from engaging in protected activity.
The agency's decision dismissing the complaint was proper and 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
January 9, 2009
__________________
Date
2
0120072412
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
4
0120072412