01994737
11-17-2000
Naomi Villa, Complainant, v. Lawrence H. Summers, Secretary, Department of the Treasury, Agency.
Naomi Villa v. Department of the Treasury
01994737
November 17, 2000
.
Naomi Villa,
Complainant,
v.
Lawrence H. Summers,
Secretary,
Department of the Treasury,
Agency.
Appeal No. 01994737
Agency No. 99-2151
DECISION
Upon review, the Commission finds that complainant's complaint was
improperly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1).<1>
Complainant has alleged an injury or harm to a term, condition, or
privilege of employment (her leave status) in that she alleged that she
was discriminated against based on her disability (Hip injury), race
(Hispanic), sex (female), and reprisal when her supervisor took certain
actions to force her to return to work in order for her to testify in
a court case.
An allegation that can be characterized as a collateral attack,
by definition, involves a challenge to another forum's proceeding,
i.e., the grievance process, the EEO process in a separate case, the
unemployment compensation process, the workers' compensation process, the
tort claims process, and so forth. See Fisher v. Department of Defense,
EEOC Request No. 05931059 (July 15, 1994) (challenge to agency's appeal
within the workers' compensation process fails to state a claim as an
EEO complaint); Lingad v. United States Postal Service, EEOC Request
No. 05930106 (June 24, 1993) (challenge to evidentiary ruling in grievance
process fails to state a claim as an EEO complaint); Wilson v. Department
of the Treasury, EEOC Request No. 05950472 (January 26, 1996) (challenge
to agency's litigation tactics at EEO hearing fails to state a claim in
subsequent EEO case).
The Commission has recognized very narrow exceptions to the general
prohibition on collateral attacks. See Ellis v. United States Postal
Service, EEOC Request No. 05920011 (March 12, 1992) (discriminatory
application of grievance process may state a claim). The complainant's
claim that her supervisor used the Worker's Compensation process in
a discriminatory manner when compared to other workers or employees,
states a claim under a narrow exception we have recognized. Millea
v. Department of Veterans Affairs, EEOC Request No. 05960338 (January
24, 1997)(employer allegedly failed to provide sufficient information to
allow the complainant to file a grievance appealing his appraisal) citing
Lau v. National Credit Union Administration, EEOC Request No. 05950037,
(March 18, 1996). The complainant's claim that she was refused assistance
in getting additional medical treatment through the worker's compensation
program does not in itself state a claim nor does her contention that
her supervisor made certain statements about her claim, although they
may constitute background evidence of discrimination. Accordingly, the
agency's final decision dismissing complainant's complaint for failure
to state a claim is REVERSED. The complaint is hereby REMANDED for
further processing in accordance with the Order below.
ORDER (E0900)
The agency is ordered to process the remanded claim as described above
in accordance with 29 C.F.R. � 1614.108. The agency shall acknowledge
to the complainant that it has received the remanded claims within
thirty (30) calendar days of the date this decision becomes final.
The agency shall issue to complainant a copy of the investigative file
and also shall notify complainant of the appropriate rights within one
hundred fifty (150) calendar days of the date this decision becomes
final, unless the matter is otherwise resolved prior to that time.
If the complainant requests a final decision without a hearing, the
agency shall issue a final decision within sixty (60) days of receipt
of complainant's request.
A copy of the agency's letter of acknowledgment to complainant and a
copy of the notice that transmits the investigative file and notice of
rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0900)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the complainant. If the agency does not comply with the Commission's
order, the complainant may petition the Commission for enforcement of
the order. 29 C.F.R. � 1614.503(a). The complainant also has the right
to file a civil action to enforce compliance with the Commission's order
prior to or following an administrative petition for enforcement. See 29
C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively,
the complainant has the right to file a civil action on the underlying
complaint in accordance with the paragraph below entitled "Right to File
A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action
for enforcement or a civil action on the underlying complaint is subject
to the deadline stated in 42 U.S.C. � 2000e-16(c)(Supp. V 1993). If the
complainant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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 (R0900)
This is a decision requiring the agency to continue its administrative
processing of your complaint. However, if you wish to file a civil
action, you have the right to file such action in an appropriate United
States District Court within ninety (90) calendar days from the date
that you receive this decision. In the alternative, you may file a
civil action after one hundred and eighty (180) calendar days of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. 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
11/17/00
Date
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply
to all federal sector EEO complaints pending at any stage in the
administrative process. Consequently, the Commission will apply
the revised regulations found at 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.