0120111025
05-02-2013
Randy L. Kennedy, Complainant, v. Ray H. LaHood, Secretary, Department of Transportation (Federal Aviation Administration), Agency.
Randy L. Kennedy,
Complainant,
v.
Ray H. LaHood,
Secretary,
Department of Transportation
(Federal Aviation Administration),
Agency.
Appeal No. 0120111025
Agency No. 2010-23324-FAA-02
DECISION
Pursuant to 29 C.F.R. � 1614.405(a), the Commission accepts Complainant's appeal from the Agency's October 21, 2010 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
On August 12, 2010, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (Native American), national origin (Native American), disability, age (53), and reprisal for prior protected EEO activity. Complainant stated in his formal complaint:
The [Agency] is consistently denying all injury complaints through OWCP (Office of Workers' Compensation Programs) and they automatically controvert all claims to attempt to avoid paying compensation for injuries sustained while performing job functions ... The [Agency] is practicing a form of intimidation and harassment and creates a hostile work environment to prevent employees from pursuing compensation when injured at work, when it controverts all OWCP claims.
The Agency issued a final decision dismissing Complainant's complaint pursuant to
29 C.F.R. � 1614.107(a)(1), for failure to state a claim. Specifically, the Agency found that Complainant's complaint constituted a collateral attack on the OWCP process.
On appeal, Complainant argued that his complaint was not a collateral attack on the OWCP process. Specifically, Complainant asserted that he was challenging the Agency's failure to follow the rules and regulations pertaining to the OWCP process, but was not challenging the OWCP decision itself. In addition, Complainant asserted that the EEO process was the appropriate forum for his complaint because the Agency's actions were executed as a form of retaliation against him.
Upon review, we find that the Agency properly dismissed Complainant's complaint pursuant to 29 C.F.R. � 1614.107(a)(1), for failure to state a claim. The Commission has held that an employee cannot use the EEO complaint process to lodge a collateral attack on another proceeding. See Wills v. Dep't of Def., EEOC Request No. 05970596 (July 30, 1998); Kleinman v. U.S. Postal Serv., EEOC Request No. 05940585 (Sept. 22, 1994); Lingad v. U.S. Postal Serv., EEOC Request No. 05930106 (June 25, 1993).
Complainant argued that his complaint was not a collateral attack on the OWCP process because the Agency, and not the OWCP, controverted his OWCP claims. We note, however, that the Agency controverted Complainant's OWCP claims within the OWCP process. Therefore, Complainant's complaint about the controversion was a collateral attack on the OWCP process. The proper forum for Complainant to have raised his challenges to actions which occurred during the OWCP process was within that forum itself. It is inappropriate to now attempt to use the EEO process to collaterally attack actions which occurred during the OWCP process. We note that the Commission has previously held that a complaint involving an agency's controversion of a complainant's OWCP claim constituted a collateral attack and failed to state a claim. See Cooper v. Dep't of the Army, EEOC Appeal No. 0120122536 (Oct. 10, 2012); Penticuff v. U.S. Postal Serv., EEOC Appeal No. 0120121931 (July 27, 2012); Pagliuso v. U.S. Postal Serv., EEOC Appeal No. 0120120974 (Apr. 30, 2012). Accordingly, we AFFIRM the Agency's final decision dismissing Complainant's complaint.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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), at 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 (S0610)
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 (Z0610)
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
__5/2/13________________
Date
2
0120111025
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120111025