01980142
03-26-1999
Michael E. Gray, Appellant, v. Richard J. Danzig, Secretary, Department of the Navy, Agency.
Michael E. Gray v. Department of the Navy
01980142
March 26, 1999
Michael E. Gray, )
Appellant, )
)
v. ) Appeal No. 01980142
) Agency No. DON-97-41273-010
Richard J. Danzig, )
Secretary, )
Department of the Navy, )
Agency. )
)
DECISION
The Commission finds that the agency's September 15, 1997 decision
dismissing appellant's complaint on the bases of failure to state a claim
and because it raised the same claim that had been decided by the agency,
is proper pursuant to the provisions of 29 C.F.R. �1614.107(a).
The record shows that in his complaint appellant alleged that he had
been discriminated against on the bases of race (Caucasian), mental
disability (stress), physical disability (facial paralysis), and reprisal
for prior EEO activity and prior Worker's Compensation claims when: (1)
he was threatened with termination and was not reasonably accommodated,
even though his medical condition and limitations were well known by the
agency since the early 1970's; (2) the agency denied having knowledge of
his facial paralysis and erroneously reported to the Office of Worker's
Compensation Programs (OWCP) that there was no record of him having
the illness; (3) the agency's OWCP took 5 months to process his facial
paralysis claim; (4) his worker's compensation claim was denied because
of untimeliness; and, (5) on July 30, 1997, his EKG revealed that he
has a larger than normal heart wall thickness, and that the stress to
which he was subjected contributed to his condition and declining health.
A review of appellant's allegations shows that allegations (1) and (3)
were decided by the Commission in EEOC Appeal No. 01944944 (August 8,
1995), request for reconsideration denied, EEOC Request No. 05950882
(Nov. 11, 1996). Allegations (2), (3) and (5) were decided by the
Commission in EEOC Appeal No. 01954385 (January 6, 1997), request for
reconsideration denied, EEOC Request No. 05960271 (January 6, 1997).
Accordingly, the agency's dismissal of allegations (1), (2), (3) and
(5) on the grounds that they had been decided by the agency or the
Commission was proper under the provisions of 29 C.F.R. �1614.107(a).
Allegation (4) does not state a claim within the purview of Title VII
or the Rehabilitation Act: it constitutes an impermissible collateral
attack on the OWCP process. It is within OWCP's jurisdiction to determine
whether a compensation claim with OWCP has merit, and OWCP claims are not
appealable to the EEOC. Hogan v. Department of the Army, EEOC Request
No. 05940407 (September 29, 1994). Accordingly, the agency's decision
dismissing the complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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. �l6l4.604(c).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. 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 (Z1092)
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:
March 26, 1999
DATE Ronnie Blumenthal, Director
Office of Federal Operations