0120180197
12-28-2017
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Jefferey G.,1
Complainant,
v.
Megan J. Brennan,
Postmaster General,
United States Postal Service
(Western Area),
Agency.
Appeal No. 0120180197
Agency No. 4E852018417
DECISION
Complainant timely appealed to the Equal Employment Opportunity Commission ("EEOC" or "Commission") from the Agency's September 12, 2017 dismissal of his complaint alleging 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 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 City Carrier (Q-01) at the Uptown Station in Albuquerque, New Mexico.
On August 16, 2017, Complainant filed a formal complaint alleging that the Agency discriminated against him on the bases of age (63) and reprisal for engaging prior protected EEO activity (filing EEO complaints and representing colleagues who filed EEO complaints) when:
on May 22, 2017, he was given false information during his retirement counseling session which he used to determine his retirement effective date.
On January 19, 2017, Complainant called the Agency's Human Resources Shared Services Center ("HR") and asked to start the retirement process. HR mailed Complainant a retirement application and relevant paperwork, which he completed, providing an effective retirement date of June 3, 2017. HR received Complainant's paperwork on April 5, 2017. On May 22, 2017, Complainant participated in a non-mandatory retirement counseling session, where he allegedly received false information from the Agency about determining his retirement effective date. Complainant states in the record that "[he] would have delayed the effective date of retirement greatly [if he had] the true information to make [his] selection." Instead, he did not change the June 3, 2017 retirement date he initially submitted to HR.
Complainant filed the instant EEO complaint, and on July 11, 2017, the Agency issued a letter articulating his claim and requesting clarification. Specifically, the Agency stated, "[p]lease provide the information that was given to you during counseling of which you believe was false information," and asks who gave him the alleged false information. There is no evidence in the record that Complainant provided this information. Regardless, on July 21, 2017, the Agency notified Complainant of his right to file a formal complaint.
The Agency dismissed Complainant's complaint, pursuant to 29 C.F.R. � 1614.107(a)(1), for failure to state a claim, as an attempted collateral attack on the OPM process.
ANALYSIS AND FINDINGS
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. Dep't of Defense, EEOC Request No. 05970596 (Jul. 30, 1998); Kleinman v. United States Postal Serv., EEOC Request No. 05940585 (Sept. 22, 1994); Lingad v. United States Postal Serv., EEOC Request No. 05930106 (Jun. 25, 1993). "A claim that can be characterized as a collateral attack, by definition, involves a challenge to another forum's proceeding, such as the grievance process, the unemployment compensation process, or the workers' compensation process. See, e.g., Fisher v. Dep't of Defense, EEOC Request No. 05931059 (Jul. 15, 1994) (challenge to agency's appeal within the workers' compensation process fails to state a claim as an EEO complaint); Lingad v. United States Postal Serv., EEOC Request No. 05930106 (Jun. 23, 1994) (challenge to evidentiary ruling in grievance process fails to state a claim as an EEO complaint)." With regard to the Office of Personnel Management ("OPM") specifically, it is well established that that some challenges to OPM processes do not state a claim within the meaning of EEOC regulations. See Dixon v. United States Postal Serv., EEOC Appeal No. 0120080278 (Feb. 4, 2010) (citing Walker v. United States Postal Serv., EEOC Appeal No. 01A20425 (Apr. 3, 2002) (employee's EEO challenge to his disability retirement award constituted an impermissible collateral attack OPM's adjudication during the disability retirement process).
Here, we find insufficient evidence to support the Agency's dismissal of Complainant's complaint as an impermissible collateral attack on the OPM retirement adjudicatory process. The Agency acknowledges on appeal that Complainant did not reveal the "false information" he allegedly received during the May 22, 2017 retirement meeting, yet it proceeds under the assumption that it concerns the OPM process of adjudicating retirement. Not all allegations related to retirement constitute a collateral attack on an OPM adjudicatory process. See, e.g. Complainant v. Dep't of Argic., EEOC Appeal No. 0120131558 (Jul. 25, 2013). We are also not convinced by the argument that because Complainant provided an effective retirement date prior to the May 22, 2017 retirement counseling meeting, that he could not have been provided information during that meeting that would influence his decision on an effective retirement date.
Rather, a fair reading of the complaint indicates that Complainant is alleging that the Agency purposefully provided him with false information that he relied on after the May 22, 2017 retirement counseling meeting when he kept the June 3, 2017 effective retirement date. This claim alleges a personal loss or harm to a term, condition, or privilege of Complainant's employment and states a viable claim of discrimination. See Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994).
CONCLUSION
Accordingly, the Agency's final decision dismissing Complainant's complaint is REVERSED. The complaint is hereby REMANDED to the Agency for further processing in accordance with this Decision and the Order below.
ORDER (E1016)
The Agency is ordered to process the remanded claims in accordance with 29 C.F.R. � 1614.108. The Agency shall acknowledge to the Complainant that it has received the remanded claims within thirty (30) calendar days of the date this decision was issued. The Agency shall issue to Complainant a copy of the investigative file and also shall notify Complainant of the appropriate rights within one hundred fifty (150) calendar days of the date this decision was issued, unless the matter is otherwise resolved prior to that time. If the Complainant requests a final decision without a hearing, the Agency shall issue a final decision within sixty (60) days of receipt of Complainant's request.
A copy of the Agency's letter of acknowledgment to Complainant and a copy of the notice that transmits the investigative file and notice of rights must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0617)
Compliance with the Commission's corrective action is mandatory. The Agency shall submit its compliance report within thirty (30) calendar days of the completion of all ordered corrective action. The report shall be in the digital format required by the Commission, and submitted via the Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). The Agency's report must contain supporting documentation, and the Agency must send a copy of all submissions to the Complainant. If the Agency does not comply with the Commission's order, the Complainant may petition the Commission for enforcement of the order. 29 C.F.R. � 1614.503(a). The Complainant also has the right to file a civil action to enforce compliance with the Commission's order prior to or following an administrative petition for enforcement. See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g). Alternatively, the Complainant has the right to file a civil action on the underlying complaint in accordance with the paragraph below entitled "Right to File a Civil Action." 29 C.F.R. �� 1614.407 and 1614.408. A civil action for enforcement or a civil action on the underlying complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c) (1994 & Supp. IV 1999). If the Complainant files a civil action, the administrative processing of the complaint, including any petition for enforcement, will be terminated. See 29 C.F.R. � 1614.409.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in which to submit a brief or statement in opposition. 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. Complainant's request 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 (R0610)
This is a decision requiring the Agency to continue its administrative processing of your complaint. However, if you wish to file a civil action, you have the right to file such action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. In the alternative, you may file a civil action after one hundred and eighty (180) calendar days of the date you filed your complaint with the Agency, or filed your appeal with the Commission. 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. 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
December 28, 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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