01A63025
09-06-2006
Michael D. Bibey, Complainant, v. R. James Nicholson, Secretary, Department of Veterans Affairs, Agency.
Michael D. Bibey,
Complainant,
v.
R. James Nicholson,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A63025
Hearing No. 150-A5-0628X
Agency No. 2001-0516-20041044429
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated February 28, 2006, 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. Upon
review, the Commission finds that complainant's complaint was properly
dismissed pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a
claim.
From January 1991 to October 1991, complainant was employed as a
Housekeeping Aide at a Florida facility of the agency. In a complaint
dated November 19, 2004, complainant alleged that the agency discriminated
against him on the bases of disability (back and neck injury and facial and
internal impairments) and reprisal for prior protected EEO activity under
Section 501 of the Rehabilitation Act of 1973 when its Office of Human
Resources provided incorrect information and altered documents in response
to a Request for Employment Information in Connection with Claim for
Disability Benefits which resulted in the denial of a claim he filed with
the Office of Workers' Compensation Programs (OWCP).
The agency accepted complainant's claim for investigation. Following an
investigation, the agency informed complainant of his right to request a
hearing before an EEOC Administrative Judge (AJ) or an immediate final
decision by the agency. Complainant elected the former. In a decision
dated January 25, 2006, the AJ dismissed the matter for failure to state a
claim, stating that it constitutes a collateral attack on the OWCP process.
Subsequently, the agency issued its February 28, 2006 final order, in
which it fully implemented the AJ's dismissal. Complainant filed the
instant appeal. On appeal, complainant stated that a Human Resources'
staff member stated incorrectly "complainant resigned . . . walked away
from [his] light-duty job" and provided additional false information on an
OWCP form.
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 agency dismissed complainant's complaint on the ground that
it challenged the agency's response to an OWCP claim. A claim that the
agency controverted a complainant's claim before the OWCP constitutes a
collateral attack upon the OWCP process, and therefore fails to state a
claim. See Kleinman v. U.S. Postal Service, EEOC Request No. 05940585
(September 22, 1994); Wills v. Dep't of Defense, EEOC Request No. 05970596
(July 30, 1998). The proper forum for contesting the outcome of an OWCP
claim is within that forum itself. Accordingly, we find that the agency's
dismissal of complainant's claim is proper and affirmed.
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
September 6, 2006
__________________
Date