0120081766
09-25-2009
Michael W. Higgins, Complainant, v. Michael B. Donley, Secretary, Department of the Air Force, Agency.
Michael W. Higgins,
Complainant,
v.
Michael B. Donley,
Secretary,
Department of the Air Force,
Agency.
Appeal No. 0120081766
Agency No. 9V1M07461
DECISION
Complainant filed an appeal with this Commission from the January 18,
2008 agency decision dismissing his 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. and Section
501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended,
29 U.S.C. � 791 et seq.
In his amended complaint, complainant alleged that the agency
discriminated against him on the bases of race (Black), disability (ankle,
consequential C-spine) and reprisal for prior protected EEO activity when:
(1) on approximately July 10, 2007, complainant became aware that medical
documentation which he had submitted to the Injury Compensation Office
in October 2005, had not been submitted to the Department of Labor (DOL)
and this was an effort to deny/delay his workers' compensation benefits;
and (2) on November 20, 2007, complainant became aware that his right
knee claim was still not in the DOL's database and this was another
attempt by the Injury Compensation Office to deny/delay his workers'
compensation claim/benefits.
The agency dismissed claim (1) on the grounds of failure to state a claim
and the untimeliness of EEO Counselor contact. In dismissing claim (1),
the agency noted that complainant failed to show that he was harmed by
the agency's alleged action. Regarding timeliness, the agency noted
that complainant should have been aware of the agency's action before
July 2007.
Regarding claim (2), the agency dismissed the claim for failure to
state a claim. The agency noted that although complainant identified
an injury compensation claim in the DOL's database that was incorrect,
this occurrence was not within the authority of the agency to resolve.
The agency concluded that complainant was not aggrieved because he failed
to show that he had suffered a harm. The agency also concluded that
complainant was seeking relief which only DOL could grant and, as such,
the relief was outside the agency's authority.
On appeal, complainant asserts that on October 27, 2005, he requested
that an additional condition to his cervical spine be accepted as a
consequential injury which was secondary to a fall from a ladder on July
3, 2005 at his home. He asserts further that after 15 months, he decided
to follow up with DOL. Complainant asserts that he received a letter
from the DOL, dated July 10, 2007, disallowing his claim for an injury
to his cervical, thoracic or lumbar spine. He contends that his claim
for the cervical spine was disallowed because there was no evidence of
ongoing treatment. He asserts that the agency's delay was discriminatory
and he was misled him into believing that the cervical spine documentation
submitted to the agency had been forwarded to the DOL for review.
Regarding claim 1, complainant alleged in his complaint that on October
27, 2005, he requested that the agency Injury Compensation Office
forward to the DOL his information concerning an additional condition
to his cervical spine so that it could be accepted as a consequential
injury secondary to his fall from a ladder. Complainant further alleged
that after 15 months of receiving the same response from the agency
Injury Compensation Office that his letters were still under review,
complainant contacted the DOL and he was informed by way of electronic
mail that the DOL was not aware of the existence of his letters.
Regarding claim 2, complainant alleged in his complaint that on November
20, 2007, he went to speak to the Chief of the Product Directorates
Employee Relations Section regarding his claim for his left knee and
stress and it was then he became aware that his right knee claim was
still not in the DOL database which he believed was due to the ongoing
attempts of Tinker Air Force Base's workers' compensation staff to
interfere with his compensation benefits.
EEOC Regulation 29 C.F.R. �1614.107(a) provides, in relevant part, that
an agency shall dismiss a complaint, or portion thereof, 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;
�1614.106(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 has held that an EEO complaint alleging discrimination
in connection with a workers' compensation claim before the Office
of Workers' Compensation Programs (OWCP) states a claim within the
Commission's jurisdiction only under limited circumstances. Schultz
v. United States Postal Service, EEOC Request No. 05950173 (September
26, 1996); Hogan v. Department of the Army, EEOC Request No. 05940407
(September 24, 1994). In particular, a complainant may not use the
EEO process to launch a collateral attack on the workers' compensation
process. Story v. United States Postal Service, EEOC Request No. 05960314
(October 18, 1996). The Commission has recognized that the agency has
the right to represent its position and interest in the OWCP forum, and
will not review decisions which would require it to judge the merits of
a workers' compensation claim. Hogan, EEOC Request No. 05940407.
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. The Commission has held that while the proper
forum for contesting the outcome of an OWCP claim is with the DOL,
the Commission has retained jurisdiction for allegations that the
agency delayed processing his claim because of discriminatory animus.
See Foster v. United States Postal Service, EEOC Appeal No. 01951370
(May 8, 1995), req. for recons. denied, EEOC Request No. 05950693 (May
16, 1996); but see Wade v. United States Postal Service, EEOC Request
No. 05980149 (February 2, 2001).
Regarding claim (1), the record does not establish that the agency had
delayed its submission of paperwork to the DOL's OWCP. Therefore, the
allegation fails to state a claim upon which relief can be granted.
The record contains a Memorandum, dated October 27, 2005, from the
agency's Injury Compensation Program Administrator to the DOL in London,
Kentucky, regarding complainant's left ankle and a cervical sprain related
to the July 2005 fall from a ladder at home. In the Memorandum, the
Injury Compensation Program Administrator requested that the DOL review
the documentation and make a determination regarding whether the injuries
to complainant's back and neck should be added to his existing claims
and to advise her if additional documentation needed to be submitted
to link complainant's current condition from the fall to his previously
accepted condition.
The record also contains a January 8, 2007 electronic mail message from
the Injury Compensation Program Administrator in reply to complainant's
electronic mail message of the same date. She stated in her reply to
complainant that she had sent the October 27, 2005 letter to the DOL
via its London, Kentucky facility along with complainant's request for
a change of physician. The Injury Compensation Program Administrator
noted that the agency workers' compensation documents are scanned at the
DOL's London, Kentucky facility and then forwarded to the DOL in Dallas, a
process she stated could open the door for mishandled and lost paperwork.
She stated further that she was not surprised that complainant was told
by the DOL that the documents were not received because, without wanting
to fix blame on the DOL, it was not the first nor would it be the last
time that agency documents did not reach the intended files at DOL.
The Injury Compensation Program Administrator stated that the agency
provides DOL with all documents and when the agency contacts DOL,
the agency is told that the documents are still under review and when
the injured worker calls the DOL, the injured worker is told that no
documents exist. She further stated that her office has nothing to
gain by not sending documents to DOL because the injured worker has the
ability to visit his agency face to face while DOL did not have to deal
with facing injured workers in the same manner as the agency.
Accordingly, we conclude that claim (1) fails to state a claim.
Even if claim (1) stated a claim, EEO Counselor contact was not timely
because the contact was made beyond the 45-day day limitation period
and complainant has not provided adequate justification to extend the
time limitation period. See 29 C.F.R 1614.105(a)(1). Complainant
acknowledges that he contacted the agency concerning his injury in
October 2005. The EEO Counselor's Report reflects that complainant did
not initiate contact until August 22, 2007. Yet, the record contains
medical reports following the July 2005 fall (which was the cause for
the October 2005 letter) which indicate that complainant was receiving
medical treatment for the cervical injury in 2005, 2006, and 2007.
In addition, the record contains a report of investigation regarding
complainant's workers' compensation claim. The report reveals that
notes from a claim worksheet reveal that as early as February 23, 2006,
complainant had contacted a Claims Specialist regarding adding his neck
and back to the initial ankle claim and that the status was pending as of
April 6, 2006. Also, complainant himself in a January 8, 2007 electronic
mail to the Human Resource Specialist (HRS) in which he inquired about
the status of the October 27, 2005 letter forwarded by the office to
the DOL, noted that he had received conflicting responses from her and
the DOL regarding the status of his letter. Still, complainant did not
initiate EEO Counselor contact until August 2007. We therefore find that
complainant, who was well familiar with the workers' compensation claims
process, should have had a reasonable suspicion of discrimination long
before July 2007, when he alleges that he received a denial from the DOL.
The Commission has held that since the limitation period for contacting an
EEO counselor is triggered by the reasonable suspicion standard, waiting
until one has "supporting facts" or "proof" of discrimination before
initiating a complaint can result in untimely EEO Counselor contact.
See Bracken vs. United States Postal Service, EEOC Request No. 05900065
(March 29, 1990). Further, the Commission has consistently held that a
complainant must act with due diligence in the pursuit of his claim or
the doctrine of laches may apply. O'Dell v. Department of Health and
Human Services., EEOC Request No. 05901130 (December 27, 1990).
Regarding claim (2), the Commission also finds that the allegation fails
to state a claim. The record contains a Memorandum, dated March 1, 2007,
from the agency's Human Resources Specialist for Workers' Compensation
to complainant's physician informing him that her review of the DOL's
database did not show that complainant's right knee had been accepted
as a consequential injury. The record also reflects that the Memorandum
was written as a result of a February 22, 2007 report from complainant's
physician to Workers' Compensation Claims in which complainant's physician
stated that complainant's right knee had been accepted as a consequential
injury from his ankle. The record also contains an April 19, 2007
electronic mail message from the Chief, Product Directorates Employee
Relations Section in which he stated that any letters or contacts with
the doctors regarding complainant's care were governed by DOD Manual
1400.25-M, Injury Compensation. He also stated that the agency had a
right and a responsibility to follow-up with medical providers and the
DOL's OWCP whenever there was a question or concern about information
which the agency received which impacts the employee's abilities to
return to duty and contains any error which could result in benefits being
granted which were not authorized, or if the agency received information
which it knew was incorrect or which might need clarification.
The Commission has long 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 challenges to matters concerning the processing of his
claim is with the OWCP. Further, an attack on the merits of an OWCP
claim, or of the agency's action in representing its interests in the
OWCP forum, even by the submission of allegedly false information, does
not state a claim. See Pirozi v. Department of the Navy, EEOC Request
No. 05970146 (October 23, 1998); Ward v. United States Postal Service,
EEOC Request No. 05980036 (March 19, 1998).
The agency's dismissal of the complaint for failure to state a claim 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
September 25, 2009
__________________
Date
2
0120081766
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
6
0120081766