0120130775
05-08-2013
David L. Smith, Complainant, v. Bill Johnson, President and Chief Executive Officer, Tennessee Valley Authority, Agency.
David L. Smith,
Complainant,
v.
Bill Johnson,
President and Chief Executive Officer,
Tennessee Valley Authority,
Agency.
Appeal No. 0120130775
Agency No. 2012-161
DECISION
Complainant filed a timely appeal with this Commission from the Agency's final decision dated November 13, 2012, dismissing a formal 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. and Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
Complainant, a former Agency employee, filed a formal EEO complaint on October 3, 2012,1 claiming that the Agency subjected him to discrimination on the basis of disability and in reprisal for prior EEO activity when:
1. the Director of Retirement Management, TVA Retirement System Board (Director) failed to consider additional medical evidence and bring Complainant's claim for disability retirement before the TVA Retirement Board for a re-vote following his request on August 8, 2012; and
2. the Director failed to respond to Complainant's correspondence of August 23, 2012, regarding additional medical evidence that he believes comprises a legitimate appeal to the TVA's Review Board for review of his denied
disability, thereby refusing to bring his appeal to the TVA's Review Board for review and re-vote.
The Agency dismissed the instant formal complaint, pursuant to 29 C.F.R. � 1614.107(a)(1), for stating the same claim as one previously adjudicated. The instant appeal followed.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. 1614.107(a)(1) provides that an agency shall dismiss a complaint that states the same claim that is pending before or has been decided by the agency or Commission.
The instant claim raises the same matter that has been previously addressed by this Commission concerning an earlier EEO complaint filed by Complainant, identified under Agency Number TVA-2012-019. In that earlier complaint, Complainant claimed that he was discriminated when, from 2002 to July 30, 2011, and continuing, his receipt of a monthly longevity retirement distribution, instead of a compensatory disability retirement distribution, has been discriminatory; and the Director of Retirement Management neither reviewed Complainant's file to determine the presence and contents of a Form 1444 and reported his findings, nor submitted Complainant's disability retirement application for reconsideration and re-vote to the TVA Retirement Board. The record further reflects that the matters raised in Agency No. TVA-2012-019 have already been adjudicated in Smith v. Tennessee Valley Authority, EEOC Appeal No. 0120123217 (December 20, 2012); and Smith v. Tennessee Valley Authority, EEOC Appeal No. 0120121443 (March 27, 2012), request for reconsideration denied, EEOC Request No. 0520120355 (June 21, 2012). Therefore, the Agency correctly determined that the current complaint should be dismissed for raising the same claim as the one adjudicated in Complainant's earlier complaint.
On appeal, the Agency has requested "special relief," in light of "the threatening and oftentimes unintelligible information" which Complainant has submitted in two prior appeals. The Agency notes further multiple problems which the Agency has experienced by not having received copies of documents submitted by Complainant to the Commission. The Agency specifically request that the Commission issue an order that it will not accept any further documentation from Complainant unless it is submitted with a signed and certified statement indicating that the same document(s) have been transmitted to the Agency; and that the Commission issue an order indicating that res judicata bars Complainant from further appeals on the issue of disability retirement unless Complainant proffers new and additional evidence about his medical condition as it existed at the time of his termination from Agency employment in 1992.
We have reviewed the record thoroughly and find that it is presently unnecessary to grant the "special relief" requested by the Agency. However, we cannot permit a party to repeatedly circumvent the appeals processes detailed in 29 C.F.R. Part 1614. Accordingly, Complainant is advised that, in the future, he must serve the Agency with all appeals, statements and briefs simultaneously with filing them with this Commission. We will carefully examine any future appeals to determine whether they are indicative of an abuse of the administrative process. If so, the Commission will not hesitate to impose appropriate sanctions. See Card v. USPS, EEOC Appeal No. 01955994 (August 2, 1996); request to reconsider denied, EEOC Request No. 05960840 (February 20, 1998).
Accordingly, the Agency's final decision dismissing Complainant's formal complaint for the reason stated herein is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 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 77960, Washington, DC 20013. 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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
May 8, 2013
__________________
Date
1 The record reflects that in approximately 1992, Complainant's employment with the Agency was terminated.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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