05A10676
07-31-2002
Robert F. Stone, Complainant, v. Elaine Chao, Secretary, Department of Labor, Agency.
Robert F. Stone v. Department of Labor
05A10676
July 31, 2002
.
Robert F. Stone,
Complainant,
v.
Elaine Chao,
Secretary,
Department of Labor,
Agency.
Request No. 05A10676
Appeal Nos. 01954712 & 01953911
Agency No. 5-01-077 & 4-01-034
DENIAL OF REQUEST FOR RECONSIDERATION
Robert F. Stone (complainant) timely initiated a request to the Equal
Employment Opportunity Commission (EEOC or Commission) to reconsider
the decisions in Robert F. Stone v. Department of Labor, EEOC Appeal
Nos. 01954712 (April 27, 1997) and 01953911 (November 13, 1996). On April
17, 1997, the Commission closed these requests, along with several
others, after determining that the agency and complainant had entered
into a settlement agreement on the relevant cases. See Robert F. Stone
v. Department of Labor, EEOC Request Nos. 05950988, 05960327, 0597310,
05970328 and 05970515 (April 17, 1997). Subsequently, complainant
contacted the Commission and argued that certain issues raised in his
appeals and requests for reconsideration were specifically excluded
from the settlement agreement. Upon review of the relevant documents,
the Commission determined that a new request for reconsideration should
be docketed in order to address complainant's concerns.
EEOC Regulations provide that the Commission may, in its discretion,
reconsider any previous Commission decision where the requesting party
demonstrates 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. See 29 C.F.R. � 1614.405(b).
As an initial matter, we note that complainant's argument that certain
of his claims were specifically excluded from the settlement agreement
has merit. We will therefore address his requests for reconsideration
of EEOC Appeal Nos. 01954712 and 01953911.<1>
In EEOC Appeal No. 01954712, complainant alleged that he was subjected
to disability-based discrimination and retaliation when:
(1) on December 28, 1994, the Office of Worker's Compensation (OWCP), in
cooperation with the Occupational Safety and Health Administration (OSHA)
and the Office of Inspector General (OIG), used criminal investigators to
put him under surveillance to develop information in order to influence
his doctors' medical decisions and intimidate him;
criminal investigators used their criminal investigatory power to
place him under surveillance and willfully developed material used by
management to influence doctors' decisions and intimidate him;
senior management used their positions to intimidate and influence
the decision of doctors who treated and examined him for work related
injuries, in order to unconstitutionally deprive him of property
and other constitutional rights. These actions also caused treating
physicians to withhold medical services and made it difficult for him
to receive proper medical treatment.
The agency dismissed Issue 2, noting that it stated the same claim as
that raised in Issue 1. In the appellate decision, the Commission
affirmed this dismissal.
In his request for reconsideration, complainant offers no evidence or
argument to demonstrate that the prior decision involved a clearly
erroneous interpretation of material fact or law or will have a
substantial impact on the practices, procedures, or operations of the
agency. Indeed, complainant offers no argument whatever concerning the
decision in EEOC Appeal No. 01954712.
Turning to EEOC Appeal No. 01953911, complainant alleged that he was
discriminated against on the basis of disability and subjected to
retaliation between July 1, 1993 and November 22, 1993, in connection
with the offer of a position with OSHA, made at the request of OWCP.
He described sixteen incidents in his formal complaint. Finding that
Issues 1-6 and Issues 12-16 related to OWCP's handling of complainant's
OWCP claim and its evaluation of his readiness to return to work from
the compensation rolls under the Federal Employees' Compensation Act,
the agency dismissed these allegations for failure to state a claim.
The appellate decision affirmed this dismissal.
In his request for reconsideration, complainant argues that a disabled
federal employee suffering from a disabling compensable injury is
to be treated the same as other handicapped individuals under the
Rehabilitation Act. He argues that OWCP is subject to the requirements
of the Rehabilitation Act and that his claims concerning OWCP's actions
should not have been dismissed for failure to state a claim. He also
contends that new and material evidence establishes that agency officials
lied during the EEO investigation.
After a careful review of the record, we find that complainant failed
to demonstrate that the appellate decision involved a clearly erroneous
interpretation of material fact or law, or will have a substantial impact
on the practices, procedures or operations of the agency. In so finding,
we note that the previous decision did not determine, as complainant
appears to believe, that OWCP is exempt from the requirements of the
Rehabilitation Act. Rather, the decision followed the long-established
precedent 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 24, 1993). The proper forum for complainant to have
raised challenges to actions which occurred during OWCP's processing of
his worker's compensation claim was before the OWCP.
Although there is an exception to this rule which applies to
allegations that an agency delayed processing an OWCP claim because of
discriminatory animus, complainant's complaint does not include this
type of allegation. See Foster v. U.S. Postal Service, EEOC Request No.
05950693 (May 16, 1996).
After a review of complainant's requests for reconsideration, the previous
decisions, and the entire record, the Commission finds that the requests
fail to meet the criteria of 29 C.F.R. � 1614.405(b), and it is the
decision of the Commission to deny the requests. The decisions in EEOC
Appeal Nos. 01954712 and 01953911 remain the Commission's final decisions.
There is no further right of administrative appeal on the decision of
the Commission on these requests for reconsideration.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0900)
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 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.
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
July 31, 2002
Date
1 We note that in complainant's request for
reconsideration labeled EEOC Appeal No. 01954712, Agency No. 5-01-077,
complainant describes allegations that were actually raised in Agency
No. 4-01-118 and appealed in EEOC Appeal No. 01953911. Complainant also
filed a request for reconsideration labeled EEOC Appeal No. 01953911,
Agency No. 4-01-118, although it did not contain any substantive
arguments. Because it cannot be determined whether or not complainant
intended to file requests for reconsideration on both of these appeals,
we will assume that he did and address both in this decision.