05960780
10-23-1998
Pauline Horvath, Appellant, v. John H. Dalton, Secretary, Department of the Navy, Agency.
Pauline Horvath v. Department of the Navy
05960780
October 23, 1998
Pauline Horvath, )
Appellant, )
)
v. ) Request No. 05960780
) Appeal No. 01953361
John H. Dalton, ) Agency No. 95-65885-001
Secretary, )
Department of the Navy, )
Agency. )
______________________________________)
DENIAL OF REQUEST FOR RECONSIDERATION
On August 13, 1996, Pauline Horvath (appellant), timely initiated
a request to the Equal Employment Opportunity Commission (EEOC) to
reconsider the decision in Horvath v. Department of Navy, EEOC Appeal
No. 01953361 (July 8, 1996), received July 16, 1996. EEOC Regulations
provide that the Commissioners may, in their discretion, reconsider
any previous Commission decision. 29 C.F.R. �1614.407(a). The party
requesting reconsideration must submit written argument or evidence
which tends to establish one or more of the following three criteria:
new and material evidence is available that was not readily available
when the previous decision was issued, 29 C.F.R. �1614.407(c)(1);
the previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy,
29 C.F.R. �1614.407(c)(2); and the previous decision is of such
exceptional nature as to have substantial precedential implications,
29 C.F.R. �1614.407(c)(3).
The record reveals that appellant filed a claim with the Department of
Labor, Office of Workers' Compensation Programs (OWCP). The agency then
received a request from OWCP to provide comments from a knowledgeable
supervisor about appellant's claims. Appellant's second-level supervisor
responded with comments refuting appellant's need for sick leave use.
Specifically, the supervisor stated that despite appellant's claim that
she had to be on leave because she was denied use of her wheelchair,
the supervisor had never known appellant to use a wheelchair. The
supervisor also generally indicated that while appellant claimed that
her physical limitations were not accommodated, she had not provided
medical documentation to support these restrictions.
Appellant filed a formal EEO complaint alleging race and physical
disability discrimination, and reprisal because of her second-level
supervisor's comments in the April 1994 letter to OWCP that were intended
to encourage the disallowance of her OWCP claim. The agency dismissed
appellant's complaint for failure to state a claim. On appeal, appellant
asserted that the remarks to OWCP themselves constituted harassment.
She also asserted that she had been subjected to ongoing and continuous
harassment due to unspecified acts by the second-level supervisor, which
have caused her continual stress. In its response to appellant's appeal,
the agency contended that there was no attempt to controvert appellant's
claim, but rather it submitted comments in response to OWCP's request.
The agency asserted that appellant could not claim that she was subjected
to a hostile environment because she had voluntarily retired prior to
the submission of the April 1994 remarks.
The previous decision affirmed the agency's finding. The previous
decision noted appellant's allegation that her supervisor made "untrue and
offensive" statements about her to OWCP with the purpose of influencing
OWCP to disallow her claim. The previous decision determined that while
appellant complained that the statements were harassment, an isolated
comment or remark, unaccompanied by concrete action is not direct and
personal deprivation sufficient to render an individual aggrieved.
In her request for reconsideration, appellant contends that the remarks
to OWCP were not isolated incidents. Appellant asserts that she spoke
with the supervisor about accommodation. Appellant argues and provides
exhibits to show that the supervisor had no credibility when stating
that appellant never used a wheelchair.
ANALYSIS AND FINDINGS
After a careful review of the record, the Commission finds that
appellant's request for reconsideration meets none of the criteria of
29 C.F.R. �1614.407(c). It is therefore the decision of the Commission
to DENY the appellant's request.
The Commission has held that an EEO complaint alleging discrimination in
connection with a workers' compensation claim before OWCP states a claim
within the Commission's jurisdiction only under limited circumstances.
Schultz v. U.S. 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. U.S. 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.
Where a complainant alleges that the agency discriminated in the
processing of a workers' compensation claim -- for example, by failing
to submit required paperwork -- then the complaint states an EEO claim.
Foster v. U.S. Postal Service, EEOC Appeal No. 01951370 (May 8, 1995),
req. to recon. den., EEOC Request No. 05950693 (May 16, 1996). However,
where a complainant alleges that the agency discriminated in a manner
pertaining to the merits of the workers' compensation claim -- for
example, by submitting paperwork containing allegedly false information
-- then the complaint does not state an EEO claim. Id.; Schultz, EEOC
Request No. 05950173.
Here, although appellant characterizes her allegation as one of
"harassment," the gist of her allegation is that in the due course
of processing her workers' compensation claim, the agency made false
statements to OWCP going to the merits of that claim. Accordingly,
the previous decision properly affirmed the FAD dismissing appellant's
complaint for failure to state an EEO claim. Cf. Lau v. National
Credit Union Administration, EEOC Request No. 05950037 (March 18, 196)
(complaint alleging that agency improperly released accurate, but
privileged, information to OWCP states an EEO claim).
CONCLUSION
After a review of appellant's request to reconsider, the previous
decision, and the entire record, the Commission finds that appellant's
request meets none of the criteria of 29 C.F.R. �1614.407(c), and
is DENIED. The decision in Appeal No. 01953361 remains the final
decision of the Commission in this matter. There is no further right
of administrative appeal from the decision of the Commission on this
request for reconsideration.
STATEMENT OF RIGHTS - ON REQUEST FOR RECONSIDERATION
RIGHT TO FILE A CIVIL ACTION (P0993)
This decision of the Commission is final, and there is no further right of
administrative appeal from the Commission's decision. You have the right
to file a civil action in an appropriate United States District Court.
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from
the date that you receive this decision. To ensure that your civil
action is considered timely, you are advised to file it WITHIN THIRTY
(30) CALENDAR DAYS from the date that you receive this decision or
to consult an attorney concerning the applicable time period in the
jurisdiction in which your action would be filed. 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.
RIGHT TO REQUEST COUNSEL (Z1092)
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:
Oct. 23, 1998
__________________ ______________________
DATE Frances M. Hart
Executive Officer
Executive Secretariat