Sidney G. Leslie, Complainant, Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionFeb 4, 2000
01995471_01996686 (E.E.O.C. Feb. 4, 2000)

01995471_01996686

02-04-2000

Sidney G. Leslie, Complainant, Togo D. West, Jr., Secretary, Department of Veterans Affairs, Agency.


Sidney G. Leslie, )

Complainant, )

)

) Appeal Nos. 01995471

) 01996686

) Agency Nos. 99-2047

Togo D. West, Jr., ) 99-3875

Secretary, )

Department of Veterans Affairs, )

Agency. )

____________________________________)

DECISION

On June 24, 1999, complainant filed a timely appeal with this Commission

from a final agency decision (FAD) dated June 3, 1999, pertaining to

his complaint of unlawful employment discrimination in violation of

Section 501 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. �

791 et seq.<1> In its FAD, the agency defined complainant's complaint

as alleging harm on the basis of mental disability when:

On April 1, 1999, complainant became aware of a letter in his Office of

Workers' Compensation Program (OWCP) case file, written by the agency

OWCP Coordinator, stating that complainant had made slanderous remarks

to the OWCP coordinator, and was a threat to her; and

On April 5, 1999, complainant became aware that the OWCP Coordinator

had written a letter to the Department of Labor (DOL) stating, �The

information that [complainant] provided does not substantiate that the

stress is related to the delay or denial of medical treatment for his

back.

The agency dismissed the complaint for failure to state a claim.

Specifically, the agency found that statements from the agency OWCP

Coordinator, even if false, do not render complainant aggrieved.

The agency also noted that the OWCP Coordinator was removed from working

on complainant's case, and the letter in question was destroyed by the

agency's new OWCP case worker.

On appeal (01995471), complainant alleges that he suffered harm because

the DOL used the OWCP Coordinator's false statements as a basis to deny

complainant's compensation claim. Complainant also argues that his

complaint was based on physical disability, not mental disability.

Complainant filed a second formal complaint on July 28, 1999, alleging

discrimination based on reprisal for his prior EEO activity, in violation

of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. �

2000e et seq. In a FAD dated August 5, 1999, the agency defined this

complaint as alleging that on June 21, 1999, complainant became aware

that the OWCP Coordinator sent a report of contact containing false and

misleading information to the DOL regarding an interaction she had with

complainant's physician. The agency dismissed the second complaint for

failure to state a claim.

Complainant filed a timely appeal from the August 5, 1999 FAD (01996686).

On appeal, complainant argued that the OWCP Coordinator threatened his

doctor and attempted to have complainant arrested for his hostile and

aggressive behavior when he left forms with the OWCP Coordinator, even

though complainant sent the forms through administrative personnel.

The record includes complainant's second formal complaint, wherein

complainant alleged that the OWCP Coordinator withheld his physician's

response to the Coordinator's report of contact from DOL, ordered

complainant's doctor to call the police and have complainant arrested,

and filed false statements with DOL even after she had been removed from

the case.

The Commission finds that the agency improperly defined the claims in

complainant's second complaint. Complainant clearly alleged, and argues

on appeal, that:

The OWCP Coordinator sent a misleading report of contact to the DOL

regarding an interaction with complainant's physician;

The OWCP Coordinator withheld the physician's statement from the OWCP;

and

The OWCP Coordinator attempted to have complainant arrested for his

hostile and aggressive behavior.

Claims (b) and (c) were not addressed by the agency, and the Commission

interprets the agency's silence as a dismissal of the claims.

Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter

cited as 29 C.F.R. � 1614.107(a)(1)) provides, in relevant part,

that an agency shall dismiss a complaint, or portion thereof, that

fails to state a claim. An agency shall accept a complaint from any

aggrieved employee or applicant for employment who believes that he

or she has been discriminated against by that agency because of race,

color, religion, sex, national origin, age or disabling condition.

29 C.F.R. �� 1614.103, .106(a). The Commission's federal sector case

precedent has long defined an "aggrieved employee" as one who suffers a

present harm or loss with respect to a term, condition, or privilege of

employment for which there is a remedy. Diaz v. Department of the Air

Force, EEOC Request No. 05931049 (April 22, 1994).

The Commission has held that a collateral attack to the OWCP process

fails to state a claim. See Conley v. Navy, EEOC Request No. 05970402

(Feb. 11, 1999); Agustin v. Department of Labor, EEOC Request No. 05960127

(Dec. 19, 1996) (direct attack of manner in which OWCP personnel processed

an injury claim is a collateral attack). An attack of the merits of an

OWCP claim, or of the agency's action in representing its interests in the

OWCP forum, even by the submission of allegedly false information, does

not state a claim. See Pirozi v. Department of the Navy, EEOC Request

No. 05970146 (Oct. 23, 1998); Ward v. United States Parcel Service,

EEOC Request No. 05980036 (Mar. 19, 1998).

In the present case, complainant alleges in claims (1), (2), and (a) that

the OWCP Coordinator submitted false statements to DOL. These matters

are a collateral attack on the OWCP process and fail to state a claim.

Complainant should raise these matters within the OWCP process itself,

not through an EEO complaint. Accordingly, the agency's dismissal of

claims (1), (2), and (a) was proper.

Claims (b) and (c) also involve a collateral attack to the OWCP.

The altercation described by complainant in claim (c) was part of

the contact within the OWCP process, detailed in the report of contact

referenced in claim (a). Disputes concerning the agency's submission of

documents also is a matter rising from the OWCP process and pertaining to

the OWCP process; therefore claim (b) is more properly addressed within

that forum, not within the EEO process. Accordingly, claims (b) and

(c) also fail to state a claim.

CONCLUSION

Accordingly, the agency's dismissals are AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1199)

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

64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter

referred to as 29 C.F.R. � 1614.405). 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 64 Fed. Reg. 37,644, 37,661 (1999)

(to be codified and hereinafter referred to as 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 (S1199)

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 (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:

February 4, 2000

____________________________

Date Carlton M. Hadden, Acting Director

Office of Federal Operations

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days of mailing. I certify that

the decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

_______________ __________________________

Date Equal Employment Assistant

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 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at WWW.EEOC.GOV.