01984475
07-06-2000
Barbara S. Minnich, Complainant, George J. Tenent, Director, Central Intelligence Agency, Agency.
Barbara S. Minnich v. Central Intelligence Agency
01984475
July 6, 2000
Barbara S. Minnich, )
Complainant, )
)
)
) Appeal No. 01984475
George J. Tenent, ) Agency No. 94-45
Director, )
Central Intelligence Agency, )
Agency. )
)
DECISION
On May 14, 1998, the complainant filed an appeal with the Equal Employment
Opportunity Commission (Commission) from a final decision of the agency
dated April 14, 1998 concerning her complaint of unlawful employment
discrimination in violation of Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. �2000e et seq., �501 of the Rehabilitation Act of
1973, 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. The
appeal is timely (see 64 Fed. Reg. 37,644, 37,659 (1999) (to be codified
at 29 C.F.R. � 1614.402(a)), and it is accepted under 64 Fed. Reg. 37,644,
37,659 (1999) (to be codified at 29 C.F.R. � 1614.405).<1>
ISSUE PRESENTED
Whether the agency properly dismissed the complainant's complaint for
failure to state a claim.
BACKGROUND
In June 1993, the Office of Personnel Management (OPM) issued a final
decision stating it was dismissing the complainant's disability retirement
application on the grounds that it was untimely filed. It reasoned that
the complainant was separated on July 29, 1989, and OPM did not receive
her application until August 23, 1991, beyond the one year time limit
under 5 U.S.C. �8337(b) to file an application. Title 5 U.S.C. �8337(b)
concerns disability retirement under the Civil Service Retirement System
(CSRS). OPM rejected the complainant's contention that she was actually
separated in August 1990.
Thereafter, the complainant filed an appeal with the Merit Systems
Protection Board (MSPB). In its initial decision of October 1993,
the MSPB stated that the complainant was employed under the CSRS.
It noted that while some of the complainant's retirement forms were
stamped "FERS," as though she was employed under the Federal Employee
Retirement System (FERS), the complainant remained eligible to receive
a disability retirement under CSRS because she worked for the agency
from 1963 to 1969, prior to being rehired in 1984. The initial decision
affirmed OPM's decision. Thereafter, the complainant filed a petition
with the MSPB to review its initial decision. The MSPB rejected the
petition on the grounds that it was untimely filed.
Meanwhile, in June 1994 the complainant filed an EEO complaint alleging
that the agency discriminated against her on the bases of race, sex,
age, disability and reprisal for EEO activity when it refused to complete
disability retirement application forms she provided the agency in March
1994 and file and/or return them to her. She wished to apply for a FERS
disability retirement with OPM.
The record contains a May 1997 affidavit by the agency's Chief of the
Services and Benefits Group which indicates that while the complainant
was previously in CSRS, she transferred to FERS in 1987, apparently via
a voluntary election window.
The agency dismissed the complaint for failure to state a claim.
It reasoned that the complainant complaint constituted an improper
collateral attack on OPM's decision of untimeliness, and was another
attempt to apply for disability retirement. The agency stated that while
the complainant used CSRS forms in applying for disability retirement in
1991, she was covered by FERS when she was separated. Further, citing
CSRS and FERS statutory provisions, the agency stated that the one year
time limit for filing a disability retirement application under CSRS
and FERS was the same.<2>
On appeal, the complainant states that the agency sent her forms
appropriate to CSRS, not FERS, and OPM did not receive proper records
from the agency that she was under FERS. She states that when she made
her request to the agency in March 1994, her case was still pending
before the MSPB, and there was time to correct the record. She argues
that the agency should have cooperated by correcting the error, filing
the disability retirement forms, and leaving the matter in the hands of
the correct judicial body to make a determination.
In response to the complainant's appeal, the agency states that under
regulations, an agency may only file disability retirement forms on
behalf of an employee under limited circumstances, and it is normally
up to the employee to file the forms. As it existed in 1994, OPM FERS
regulation 5 C.F.R. �844.201(a)(1) provided that after an employee
separated from service, the employee must file a disability retirement
application with OPM, and if the former employee filed with the agency
rather than OPM, the filing deadline would only be met if OPM received
the application from the agency within one year after the separation.
55 FR 6598 (February 26, 1990). 5 C.F.R. 844.202 provided that an
agency must file a disability retirement application for an employee
only under limited circumstances which generally related to the employee
being institutionalized or the agency concluding that the employee was
incapable of making a decision to file, and other related factors.
ANALYSIS AND FINDINGS
A collateral attack involves a challenge to another forum's proceeding,
i.e., the EEO process in a separate case, the unemployment compensation
process, the workers' compensation process, and so on. Such attacks
are allowed only in limited circumstances. Lau v. National Credit Union
Administration, EEOC Request No. 05950037 (March 18, 1996). Hence, where
a complainant files a discrimination complaint alleging discrimination
because an agency submitted paperwork with false information to the Office
of Workers' Compensation (OWCP) regarding the complainant's workers'
compensation claim, this constitutes an impermissible collateral attack
on the OWCP proceeding. The Commission has recognized that an agency
has the right to represent its position and interest in the OWCP forum,
and will not review decisions which would require it to judge the merits
of the workers' compensation claim. Pizozzi v. Department of the Navy,
EEOC Request No. 05970146 (October 30, 1996).
While the Commission has held that the proper forum for contesting the
outcome of a workers' compensation claim is with OWCP, the Commission
has accepted jurisdiction for allegations that the agency delayed
processing a workers' compensation claim by failing to submit a form
because of discriminatory animus. Foster v. U.S. Postal Service, EEOC
Request No. 05950693 (May 16, 1996). The instant case, however, is
distinct. In Foster, it was the agency's duty to file the form with OWCP.
In the instant case, the complainant had the responsibility to file the
application, and could do so directly with OPM. Given this, the agency's
refusal in 1994 to complete the disability retirement form for the stated
reason that it believed the complainant was improperly attempting to
re-file her disability retirement claim constituted opposition activity
covered by Pizozzi, supra. Accordingly, the complainant's complaint
fails to state a claim. Her claim lies with OPM, which has the power to
determine whether it should process her second application for disability
retirement, not in the EEO forum.
CONCLUSION
Based upon a review of the record, and for the foregoing reasons, it is
the decision of the Commission to AFFIRM the final decision of the agency
which found that the complainant's complaint fails to state a claim.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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 64
Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter referred
to as 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 64 Fed. Reg. 37,644, 37,661 (1999) (to be codified and hereinafter
referred to as 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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:
July 6, 2000
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply to all
federal sector EEO complaints pending at any stage in the administrative
process. Consequently, the Commission will apply the revised regulations
found at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.
2The agency previously dismissed the complainant's complaint for failure
to state a claim. The Commission vacated the agency's dismissal and
ordered a supplemental investigation. Minnich v. Central Intelligence
Agency, EEOC Request No. 05950414 (Februry 14, 1997). Much of the
factual information recited in the body of this decision regarding the
complainant's CSRS and FERS disability retirement applications were
produced during the supplemental investigation.