0120152913
02-16-2016
Thaddeus N.,1 Complainant, v. Eric Fanning, Acting Secretary, Department of the Army, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Thaddeus N.,1
Complainant,
v.
Eric Fanning,
Acting Secretary,
Department of the Army,
Agency.
Appeal No. 0120152913
Agency No. ARCCAD15FEB00501
DECISION
On September 1, 2015, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated August 4, 2015, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as an Overhaul Aircraft Trades Helper, WG-5 at the Agency's Corpus Christi Army Depot in Corpus Christi, Texas.
On May 19, 2015, Complainant filed a formal complaint, as amended, which the Agency defined as whether it discriminated against him based on reprisal for prior protected equal employment opportunity (EEO) activity when:
1. his request for assistance completing forms and/or documentation to get paid for a work place incident was denied or ignored;
2. on or about July 2014, his request for advanced sick leave was denied; and
3. on or about June 1, 2015, he requested information regarding leave he took because of his disability and management has not provided him with the information.
Complainant wrote that his former supervisor, who was succeeded on January 11, 2015, held his documentation including but not limited to his Family and Medical Leave Act (FMLA) request, advanced sick leave paperwork and doctor's excuses in a locked cabinet which was lost.
In his report, the EEO counselor wrote that Complainant's former supervisor acknowledged that Complainant submitted an FMLA request to him, but it was about three years ago, and contended Complainant never submitted the medical documentation requested of him. The EEO counselor wrote that Complainant's supervisor relayed that he requested Complainant to submit medical documentation to support his requests for advanced sick leave or FMLA, but he did not bring it in. An Agency Resource Specialist stated that while Complainant filed an Office of Workers' Compensation Program (OWCP) claim in October 2014, he did not receive any wage loss compensation because Complainant did not complete a claim for such compensation, and his doctor did not take him off work.
The record contains an FMLA Certification of Health Care Provider for Employee's Serious Health Condition form for Complainant completed in September 2014, with various limitations. It was provided by Complainant to the EEO counselor. The record also contains an April 2015, letter by an Acting Chief in Complainant's work area to Complainant advising that he understood he may need to invoke FMLA to assist in taking care of some personal matters. The Chief wrote he was attaching FMLA forms and a Request for Advance Sick Leave form, and to let him know if he had questions or needed to invoke FMLA.
In May 2015, the Agency EEO Manager wrote Complainant, by and through his attorney, inquiring when he requested advanced sick leave and when his request was denied. Complainant did not respond.
The Agency dismissed issue 1 for failure to state a claim. It reasoned that this allegation regarded his OWCP claim not being properly processed, which constituted a collateral attack on the OWCP process.
The Agency dismissed issue 2 for failure to timely initiate EEO counseling. It reasoned that Complainant did not initiate EEO counseling until February 11, 2015, beyond the 45 calendar day time limit. In making this finding, the Agency recounted that Complainant did not respond to the above inquiry, so it concluded the only denial occurred in July 2014 (the date recited in the EEO complaint).
The Agency dismissed issue 3 for failure to state a claim. It reasoned that the requested information was currently available to him online through the MyPay website, which would provide current information and goes back a year. The Agency found that Complainant's claim that his supervisor will not give him the information he requested is not enough to render him aggrieved or likely to deter EEO activity.2
On appeal, Complainant makes not comment.
ANALYSIS AND FINDINGS
We agree with the Agency that issue 1 fails to state a claim. 29 C.F.R. � 1614.107(a)(1). Issue 1 concerns Complainant's OWCP claim not being properly handled. This constitutes a collateral attack on the OWCP process. Wills v. Department of Defense, EEOC Request No. 05970596 (July 30, 1998). OWCP has jurisdiction over workers' compensation claims processing, not the EEOC.
An aggrieved person must seek EEO counseling within 45 days of the date of the alleged discriminatory action, or in the case of a personnel action, within 45 days of the effective date of the action. 29 C.F.R. � 1614.105(a)(1) & .107(a)(2). We find, for the same reason as the Agency that Complainant failed to timely initiate EEO counseling regarding issue 2. We add that Complainant also complained that the Agency did not process his FMLA claim. He not state when this occurred, but the copy of the FMLA paperwork he provided was dated September 8, 2014. In his complaint, Complainant raised his advanced sick leave paperwork and FMLA request in tandem. Based on the record before us, we find that Complainant also failed to timely initiate EEO counseling regarding his FMLA claim.
We agree with the Agency's assessment that issue 3 fails to state a claim since Complainant was not aggrieved and the matter would not reasonably likely deter EEO activity.
The FAD is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0815)
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 Chap. 9 � VII.B (Aug. 5, 2015). 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 (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
February 16, 2016
__________________
Date
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 Complainant's supervisor stated that when he succeeded Complainant's former supervisor on January 11, 2015, he helpfully provided Complainant a list of days he had been on LWOP so he could provide medical documentation to support being off, but Complainant did not bring in any medical documentation. Complainant does not specifically dispute this.
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