0120162822
01-27-2017
Antoinette L,1 Complainant, v. Carolyn W. Colvin, Acting Commissioner, Social Security Administration, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Antoinette L,1
Complainant,
v.
Carolyn W. Colvin,
Acting Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120162822
Agency No. DAL160579SSA
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision (FAD) dated August 16, 2016, dismissing her complaint of unlawful employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Claims Representative at the Agency's Houston Southwest Field Office facility in Houston, Texas. On July 19, 2016, Complainant filed a formal complaint alleging that the Agency subjected her to discrimination on the basis of Disability (rheumatoid arthritis) when:
1. Since April 2014 Complainant has been denied a reasonable accommodation; and
2. Complainant's disability retirement was lower than it otherwise would have been because of the denial of reasonable accommodation.
The Agency dismissed claim 1 for stating the same claim as a previously filed claim. Specifically the Agency found that Complainant had previously filed the same claim in a complaint dated September 21, 2015 under Agency No. DAL-15-0658-SSA and that the Agency issued a Final Agency Decision on the matter on July 22, 2016. With regard to claim 2, the Agency characterized the claim as follows "Complainant alleged that the Agency discriminated against her based on disability (physical) beginning in April 2016, and ongoing, by failing to support her application for disability retirement." The Agency found that the claim constituted a collateral attack on the disability retirement process and hence failed to state a claim. Following a review of the Formal complaint we find that claim 2 is more accurately characterized as we have above.
ANALYSIS AND FINDINGS
With regard to claim 1, we note that the regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides that the agency shall dismiss a complaint that states the same claim that is pending before or has been decided by the agency or Commission. It has long been established that "identical" does not mean "similar." The Commission has consistently held that in order for a complaint to be dismissed as identical, the elements of the complaint must be identical to the elements of the prior complaint in time, place, incident, and parties. See Jackson v. Department of the Air Force, EEOC Appeal No 01955890 (April 5, 1996) rev'd on other grounds EEOC Request No. 05960524 (April 24, 1997).
The record shows that on September 21, 2015, Complainant filed a Formal Complaint under Agency No. DAL-15-0658-SSA alleging that the Agency discriminated against her on the basis of disability when since April 23, 2014 she has been denied a reasonable accommodation. The Agency issued a Final Agency Decision on July 22, 2016 finding no denial of reasonable accommodation. Complainant appealed that Decision to this Commission and the appeal is currently pending under Appeal No. 0120170321. We therefore find that the Agency correctly dismissed claim 1 pursuant to � 1614.107(a)(1) for stating the same claim as a pending claim.
With regard to claim 2, we find that the claim fails to state a stand-alone claim but instead describes harm that Complainant allegedly incurred due to the actions alleged in claim 1. We note that the regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in part, that an Agency shall dismiss a complaint that fails to state a claim. An Agency shall accept a complaint from any employee or applicant for employment who believes he or she has been discriminated against by that Agency because of race, color, religion, sex, national origin, age, or disabling condition. 29 C.F.R. �� 1614.103, 106(a). In claim 2, the only alleged discriminatory act by the Agency is the denial of reasonable accommodation, which is already addressed in claim 1. The reduced level of disability retirement is allegedly a result of Agency discrimination, not a discriminatory act itself. In other words, Complainant does not appear to be alleging that the Agency discriminated against her by paying her a lower level of disability retirement than otherwise similarly situated coworkers outside of her protected basis. Accordingly we find claim 2 fails to state a valid claim.
To the extent Complainant is alleging the Agency failed to support her application for disability retirement, we note that the Commission has held that 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. 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 any alleged failure by the Agency to support her application for disability retirement is generally within that proceeding itself. Hence, we find that, to the extent Complainant is making such a claim, the Agency correctly dismissed the claim.
On appeal Complainant does not address the FAD's dismissal of her complaint for stating the same claim as a previously-filed claim, or for constituting a collateral attack. Instead, Complainant argues that her claims should not have been denied on summary judgment. We note, however, that her claims were not denied on summary judgment but instead were dismissed prior to an adjudication on the merits.
Finally, to the extent Complainant's appeal should be considered an appeal of the Agency's FAD under Agency No. DAL-15-0658-SSA, we note that that FAD was issued on July 22, 2016 but the instant appeal was not filed until September 7, 2016, making such an appeal untimely.
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
January 27, 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.
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