0120162367
04-24-2017
Jacki A,1 Complainant, v. Steven T. Mnuchin, Secretary, Department of the Treasury (Internal Revenue Service), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Jacki A,1
Complainant,
v.
Steven T. Mnuchin,
Secretary,
Department of the Treasury
(Internal Revenue Service),
Agency.
Appeal No. 0120162367
Agency No. IRS160302F
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision (FAD) dated June 6, 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Contact Representative at the Agency's Accounts Management/Wage and Investment facility in Richmond, Virginia.
On February 19, 2016, Complainant received a letter from the Office of Personnel Management denying her application for disability retirement. That same day she initiated contact with the Agency and requested EEO counseling. The EEO Counselor's Report indicates that Complainant had been terminated from Agency employment effective October 26, 2014. Following her termination, she had been working with Agency personnel to apply for disability retirement. However, she believed she was discriminated and retaliated against when management officials indicated on her disability retirement application that she was discharged for "time/attendance and conduct deficiencies" rather than because of her medical condition.
On May 27, 2016, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the bases of race (African-American), color (Black), disability, age (44), and reprisal ("prior involvement in the negotiated grievance process") when:
1. On October 262, 2014, Complainant was removed from service and her Personnel record showed an incorrect reason of Absent Without Leave (AWOL) and failure to follow the leave approval procedures, rather than the real reason of Complainant's medical condition/disability.
2. On February 19, 2016, Complainant received a notification letter from the Office of Personnel Management (OPM) denying her eligibility for disability retirement.
The Agency dismissed Claim 1 for untimely EEO Counselor contact and Claim 2 for failure to state a claim. The instant appeal followed.
ANALYSIS AND FINDINGS
Claim 1: Untimely EEO Counselor Contact
EEOC Regulation 29 C.F.R. � 1614.105(a)(1) requires that complaints of discrimination be brought to the attention of the Equal Employment Opportunity Counselor within forty-five (45) days of the date of the matter alleged to be discriminatory or, in the case of a personnel action, within forty-five (45) days of the effective date of the action.
The record discloses that Complainant was removed from her position with the Agency effective October 26, 2014, but Complainant did not initiate contact with an EEO Counselor until February 19, 2016, well beyond the forty-five (45) day limitation period.
On appeal, Complainant has presented no persuasive arguments or evidence warranting an extension of the time limit for initiating EEO Counselor contact. While Complainant suggests that she did not know that she had been removed from Agency employment until she received the February 19, 2016 letter from OPM, the EEO Counseling Report indicates otherwise. A fair reading of the Counselor's report indicates that it was not the termination itself that Complainant learned of for the first time in the 2016 OPM letter, but rather what reasons the Agency presented for her termination in her disability retirement application. Therefore, to the extent that Complainant's claim concerns the actual termination and the events that led up to it, the Agency correctly dismissed the claim as untimely. To the extent her claim concerns the reasons for her termination presented by the Agency on her disability retirement application, that claim is addressed below as part of Claim 2.
Claim 2: Collateral Attack
In Claim 2, Complainant challenges the denial of her application for disability retirement and presents her belief that the Agency was responsible for the denial based on the reasons it presented for her termination. The OPM denial decision indicated that she was not found to be disabled within the meaning of the retirement requirements. The Commission has held that an employee cannot use the EEO complaint process to lodge a collateral attack on another adjudicatory proceeding. See Wills v. Department of Defense, EEOC Request No. 05970596 (July 30, 1998); Kleinman v. United States Postal Service, EEOC Request No. 05940585 (September 22, 1994); Lingad v. United States Postal Service, EEOC Request No. 05930106 (June 25, 1993). The proper forum for Complainant to raise her challenges to the denial of her disability retirement claim is with OPM. Therefore, we conclude that the Agency correctly dismissed her claim as a collateral attack on the disability retirement adjudication. We note on appeal that Complainant states, "I am appalled at the insinuation. There is no attack by me." We take this opportunity to explain that "collateral attack" is a legal term of art meaning merely a challenge to the correctness of a prior decision. To the extent Complainant is seeking to challenge OPM's judgment denying her disability retirement claim, she may not do so in this forum but must instead do so by contacting OPM. Her claim in this forum does not state a claim.
CONCLUSION
The FAD is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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. The requests may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 24, 2017
__________________
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 The FAD gives the date as October 27 but the removal notice and the Notification of Personnel Action give the date as October 26, 2014.
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