[Redacted], Jed T., 1 Complainant,v.Frank Kendall, Secretary, Department of the Air Force, Agency.

Equal Employment Opportunity Commission

Dec 14, 2021

Appeal No. 2021005295 (E.E.O.C. Dec. 14, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Jed T.,1 Complainant, v. Frank Kendall, Secretary, Department of the Air Force, Agency. Appeal No. 2021005295 Agency No. 9R1M2100392 DECISION Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's final decision dated September 2, 2021, dismissing a formal complaint alleging 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. BACKGROUND During the period at issue, Complainant worked as a Materials Expediting (Forklift/Motor Vehicle Operator), Grade WG-07, with the Agency’s 402d Aircraft Maintenance Group at Robbins Air Force Base, Georgia. On April 12, 2021, Complainant contacted an EEO Counselor. Informal efforts to resolve his concerns were not successful. On July 13, 2021, Complainant filed a formal EEO complaint alleging that the Agency subjected him to discrimination based on disability (on-the-job injury to neck, right shoulder, right arm, lower back) and age (62) when, on March 31, 2021, Complainant became aware that a 1 This case has been randomly assigned a pseudonym which will replace Complainant’s name when the decision is published to non-parties and the Commission’s website. 2 2021005295 supervisor in Human Resources (SHR) wrote a statement on Complainant’s Department of Labor, Office of Workers’ Compensation Programs, Form CA-1 (workers compensation claim) that SHR had new evidence the Complainant did not follow the proper protocol to report his injury which resulted in reduced compensation from Complainant’s workers’ compensation claim. On September 2, 2021, the Agency issued the instant final decision. Therein, the Agency dismissed the formal complaint for failure to state a claim. The instant appeal followed. On, appeal Complainant asserts that while moving equipment on March 30, 2021, he had sustained an injury. Complainant asserts further that on that same day, he promptly reported the injury through his chain-of-command, he received treatment at the Occupational Medical Services clinic, and then he followed management’s instructions for completing the workers compensation claim. Complainant argues that, thereafter, the Human Rresources manager, to whom Complainant submitted the form on May 31, 2021, challenged Complainant’s workers compensation claim by writing a false statement that Complainant had failed to properly report his injury. ANALYSIS AND FINDINGS Under the Commission’s regulations at 29 C.F.R. §§ 1614.103, 1614.106(a), the Agency must accept a justiciable claim that an aggrieved employee has been subjected to discrimination based on EEO-protected characteristics or because of EEO-protected activities. EEOC Regulation 29 C.F.R. § 1614.107(a)(1) provides the Agency shall dismiss a complaint that fails to state a claim. The instant formal complaint fails to state a claim under the EEOC regulations because Complainant failed to show that he suffered harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy under EEOC’s regulations. Diaz v. Dep’t of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994). Complainant cannot use the EEOC complaint process to launch a collateral attack on a non-EEO matter. Wills v. Dep’t of Def., EEOC Request No. 05970596 (July 30, 1998). Here, even if Complainant established that SHR made a false statement on the workers’ compensation claim form, EEOC does not have the jurisdiction to remedy this situation. Complainant may contest this matter by pursuing it through the Department of Labor, Office of Workers Compensation Program, but not though this Commission. CONCLUSION Accordingly, we AFFIRM the Agency’s final decision that dismissed Complainant’s present EEO complaint in accordance with 29 C.F.R. § 1614.107(a)(1). 3 2021005295 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within which to submit a brief or statement in opposition. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), at Chap. 9 § VII.B (Aug. 5, 2015). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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). 4 2021005295 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 (Z0815) If you want to file a civil action but cannot pay the fees, costs, or security to do so, you may request permission from the court to proceed with the civil action without paying these fees or costs. Similarly, if you cannot afford an attorney to represent you in the civil action, you may request the court to appoint an attorney for you. You must submit the requests for waiver of court costs or appointment of an attorney directly to the court, not the Commission. The court has the sole discretion to grant or deny these types of requests. Such requests do not alter the time limits for filing a civil action (please read the paragraph titled Complainant’s Right to File a Civil Action for the specific time limits). FOR THE COMMISSION: ______________________________ Carlton M. Hadden’s signature Carlton M. Hadden, Director Office of Federal Operations December 14, 2021 Date