01a42322_r
01-10-2005
Lawerence Battle, Complainant, v. Norman Y. Mineta, Secretary, Department of Transportation, Agency.
Lawerence Battle v. Department of Transportation
01A42322
January 10, 2005
.
Lawerence Battle,
Complainant,
v.
Norman Y. Mineta,
Secretary,
Department of Transportation,
Agency.
Appeal No. 01A42322
Agency No. 2-04-2003
DECISION
Upon review, the Commission finds that the agency's decision dated
February 12, 2004, dismissing complainant's complaint for failure to
state a claim is proper pursuant to 29 C.F.R. � 1614.107(a)(1). In his
complaint, complainant, a former employee, alleged discrimination based
on race (African American) and in reprisal for prior EEO activity when:
The agency failed and refused to take the following actions in
accordance with the letter of acceptance issued on June 23, 2000, by the
U.S. Department of Labor, Office of Workers' Compensation Programs (OWCP):
provide him with 45 days continuation of pay (COP) beginning August
6, 1998;
provide him with administrative leave for the balance of his work shift
on August 5, 1998; and
correct his time and attendance records from August 5, 1998 to February
19, 2000, reflecting his regular work hours and work schedule documented
in Form CA-1, numbers 19 and 20.
The agency issued a letter on August 7, 2003, avoiding the payment of
his 45 days of COP.
The agency allowed management to submit to OWCP lies, misrepresentation
and concealment of facts regarding his August 5, 1998 injury claim.
The Commission finds that the agency properly defined the complaint.
After a review of the record, the Commission finds that claims (1) and
(2) concern the general administration of workers' compensation benefits
by the Department of Labor, and do not relate to an employment policy or
practice. See Stone v. Department of Labor, EEOC Appeal No. 01950550
(February 6, 1996); Montage v. Department of Labor, EEOC Appeal
No. 01952118 (May 18, 1995). With regard to claim (3), the Commission
finds that since the alleged matter concerns a collateral attack on the
merits of the workers' compensation claim, it fails to state a claim.
See Pirozzi v. Department of the Navy, EEOC Request No. 05970146 (October
23, 1998).
Accordingly, the agency's decision is hereby AFFIRMED.<1>
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 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 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 (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
January 10, 2005
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1Although the agency dismissed the complaint on the alternative grounds
for stating the same claim that had previously been decided by the agency,
we need not discuss such in this decision since the dismissal is affirmed
for failure to state a claim.