0120103043
12-02-2010
Laurie A. Dettrich, Complainant, v. Eric K. Shinseki, Secretary, Department of Veterans Affairs, Agency.
Laurie A. Dettrich,
Complainant,
v.
Eric K. Shinseki,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120103043
Agency No. 200P05312010101367
DECISION
Complainant filed a timely appeal with this Commission from the
Agency's decision dated May 24, 2010, dismissing 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.
BACKGROUND
The record indicates that Complainant had a prior EEO complaint pending
with the Agency when, through her attorney, Complainant asked to amend her
complaint to include a claim of retaliation when the Agency appealed the
State of Idaho's grant of unemployment benefits to her. The EEO Office
determined that the amendment constituted a new claim of discrimination.
As such, Complainant contacted an EEO Counselor. When the matter was not
resolved informally, Complainant filed a formal complaint on April 14,
2010. In her complaint, Complainant alleged that the Agency subjected
her to discrimination on the basis of reprisal for prior protected EEO
activity under the Rehabilitation Act when, on August 4, 2009, the Agency
appealed the State of Idaho's grant of unemployment benefits.
The Agency dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a)(1)
for failure to state a claim. The Agency noted that the complaint at
hand involved the use of the EEO complaint process as a collateral attack
on Idaho's Department of Labor. This appeal followed.
ANALYSIS AND FINDINGS
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. The Commission has long held that a complainant cannot
use the EEO complaint process to lodge a collateral attack on other
forums. See Moore v. U.S. Postal Serv., EEOC Request No. 05A10781 (May
30, 2001); Reloj v. Dep't of Veterans Affairs, EEOC Request No. 05960545
(June 15, 1998). The proper forum for Complainant to have raised her
challenges to actions which occurred during the unemployment benefits
is with the Idaho Department of Labor itself. It is inappropriate for
Complainant to attempt to use the EEO process now to collaterally attack
actions which occurred during the and unemployment processes. Accordingly,
the Commission finds that the agency's decision was proper.
CONCLUSION
Accordingly, the agency's decision dismissing the complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 (S0610)
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 (Z0610)
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
December 2, 2010
__________________
Date
2
0120103043
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
3
0120103043