U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Joana C.,1 Complainant, v. Eric Fanning, Acting Secretary, Department of the Army, Agency. Appeal No. 0120161224 Agency No. ARBELVOIR15AUG03706 DECISION Complainant filed a timely appeal with this Commission from the Agency's final decision dated January 14, 2016, dismissing her 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., and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. § 791 et seq. BACKGROUND During the period at issue, Complainant worked as an Acquisition Coordination and Planning Officer at the Agency's Intelligence and Security Command in Fort Belvoir, Virginia. On December 16, 2015, Complainant filed the instant formal complaint. Therein, Complainant alleged that she was subjected to harassment and a hostile work environment on the bases of disability and in reprisal for prior EEO activity when: a. on June 29, 2015, the Civilian Personnel Advisory Center (CPAC) Workers' Compensation representative sent a letter to the Office of Workers' Compensation Program (OWCP) requesting termination of Complainant's compensation. As a result, Complainant's compensation pay has been delayed causing undue financial hardship; b. on May 13, 2015, the representative send a letter to OWCP falsely accusing her of not complying with the Agency by returning the telework form; c. from the period of October 3, 2014 to July 17, 2015, the representative failed to process Form CA-7, Claim for Compensation in accordance with 20 CFR 10.112 which states that the employer must complete the form as soon as possible, but no more than five working days of receipt from the employee. The representative "intentionally" withheld the forms, sometimes as long as 62 days, on the following pay periods: 06/28/2015 - 07/11/2015, 06/14/2015 - 06/27/2015, 05/31/2015 - 06/13/2015, 12/14/2014 - 12/27/2014, 11/02/2014 - 11/11/2014, 10/19/2014 - 11/01/2014, 10/03/2014 - 10/18/2014. This caused a delay in compensation pay and undue financial compensation. On November 20, 2014, Complainant was forced to file a congressional in order to get the representative to process the forms; d. in February 2015, the representative failed to process her Federal Employees Health Benefits over to OWCP in a timely manner; e. on December 29, 2014, the representative refused to process Form TS-41, Notification to TSP of non-pay Status, in a timely manner. As a result, Thrift Savings Plan (TSP) threatened Complainant with taxable distribution. The form should have been processed in October 2014 at the time Complainant's worker's compensation began. Complainant had to file a congressional to get the representative to process the form; f. on November 6, 2014, the representative "intentionally" completed Form CA-7 incorrectly which resulted in a delay in compensation pay for three pay periods; g. the representative denied her request for reasonable accommodation by refusing to routinely process her claim for compensation every two weeks as done with time cards; h. on October 29, 2014, the representative had Complainant to re-submit CA-7. Complainant believed this was the representative's way of covering her wrongdoings because she held the first CA-7 that she submitted on October 2, 2014 for nearly a month; i. on October 24, 2015, the representative caused unjust expenses by requesting unnecessary medical documentation that was already on file with OWCP. Complainant believed it was the representative's way delaying her compensation pay and creating unnecessary work during her time recovering from surgery; j. the representative failed to communicate with Complainant via her personal email, home phone and/or home address knowing that she was out of the office on workman's compensation. On October 23, 2013, Complainant was forced to file an Inspector General's complaint to get the status of Form CA-7. In its January 14, 2016 final decision, the Agency dismissed the instant formal complaint pursuant to 29 C.F.R. § 1614.107(a)(1) for failure to state a claim. The Agency also found that the matter raised therein was a collateral attack on Department of Labor's OWCP process concerning her benefits. The Agency stated that Complainant should have raised her allegations through the OWCP process, not through the EEO process. Complainant makes no new contentions on appeal. The instant appeal followed. ANALYSIS AND FINDINGS EEOC Regulation 29 C.F.R. § 1614.107(a)(1) provides for the dismissal of a complaint which fails to state a claim within the meaning of C.F.R. § 1614.103. 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 21, 1994). In the instant case we find that the formal complaint constitutes a collateral attack on the OWCP process. 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. USPS, EEOC Request No. 05940585 (September 22, 1994); Lingad v. USPS, EEOC Request No. 05930106 (June 24, 1993). The proper forum for Complainant to have raised her challenges to actions which occurred during the OWCP process is within that process itself. It is inappropriate to now attempt to use the EEO process to collaterally attack actions which occurred through the OWCP process. The Agency's final decision dismissing Complainant's formal complaint for the reason stated herein 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 April 22, 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 0120161224 2 0120161224 6 0120161224