01A22955_r
08-06-2002
Garfield A. Vigil, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Garfield A. Vigil v. Department of Veterans Affairs
01A22955
August 6, 2002
.
Garfield A. Vigil,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A22955
Agency No. 200O-0612-2002100316
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated March 29, 2002, 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. In his
complaint, complainant claimed that he was discriminated against in
retaliation for prior EEO activity when, on September 11, 2001, he became
aware of an April 27, 1999 memorandum written by the Associate Chief,
Nursing Service, to the agency's Industrial Health Nurse, concerning
complainant's OWCP claim. Later, the OWCP used the contents of the
memorandum to deny complainant's claim.
The agency dismissed complainant's complaint for untimely counselor
contact, pursuant to 29 C.F.R. � 1614.107(a)(2), and, in its opposition
to complainant's appeal, the agency noted that complainant's complaint
is also properly dismissed for failure to state a claim, pursuant to 29
C.F.R. � 1614.107(a)(1).
We find that complainant's complaint is properly dismissed for failure
to state a claim. Since we are affirming the agency's dismissal of
complainant's complaint on the ground of failure to state a claim, we
will not address the agency's dismissal of complainant's complaint for
untimely EEO Counselor contact.
The Commission has held that an employee cannot use the EEO complaint
process to lodge a collateral attack on another forum's proceeding.
See Wills v. Department of Defense, EEOC Request No. 05970596 (July
30, 1998); Kleinman v. U.S. Postal Service, EEOC Request No. 05940585
(September 22, 1994); Lingad v. U.S. Postal Service, EEOC Request
No. 05930106 (June 24, 1993). The proper forum for complainant to have
raised his challenge to actions that occurred during the processing of
his OWCP claim was with the Department of Labor. It is inappropriate
to now attempt to use the EEO process to collaterally attack actions
which occurred during the processing of his workers' compensation claim.
Since complainant's complaint is a collateral attack on another forum's
proceeding, complainant fails to state a claim. Therefore, the agency's
decision to dismiss complainant's complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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), 9-18 (November 9, 1999). 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 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 (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
August 6, 2002
__________________
Date