01a51322a
12-16-2005
Leonard F. Evans, Complainant, v. Linda M. Springer, Director, Office of Personnel Management, Agency.
Leonard F. Evans v. Office of Personnel Management
01A51322
December 16, 2005
.
Leonard F. Evans,
Complainant,
v.
Linda M. Springer,
Director,
Office of Personnel Management,
Agency.
Appeal No. 01A51322
Agency No. 04-54
DECISION
Upon review, the Commission finds that complainant's complaint was
properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1) for failure
to state a claim. In a complaint dated July 12, 2004, complainant
alleged that he was subjected to discrimination on the bases of race
(African-American) and sex (male) in violation of Title VII of the Civil
Rights Act of 1964 (Title VII), as amended, 42 U.S.C. � 2000e et seq.
He alleged the agency violated a settlement agreement entered pursuant
to an appeal brought before the Merit Systems Protection Board (MSPB);
he also alleged the agency processed his retirement claim in a manner
derogatory towards his race and gender.<0> For the following reasons,
the Commission affirms the agency's dismissal.
The Commission finds that the claim that the agency breached a settlement
agreement reached during the MSPB appeal process fails to state a claim.
Under EEOC regulations a settlement agreement reached during the MSPB
appeal process is not subject to the jurisdiction of the Commission.
29 C.F.R. � 1614.501. Such an alleged breach is more properly brought
before the MSPB.
With respect to complainant's claim that the agency's processing of his
retirement annuity was discriminatory, the claim is essentially a dispute
regarding another forum's proceedings. As the Commission has stated,
an allegation of delay or deficiency in the processing of a claim for
benefits such as retirement is a collateral attack on a determination made
in another forum which fails to state a claim. See Will 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). To the extent that complainant is alleging harassment, we
are not persuaded that the incidents alleged are sufficiently severe
or pervasive to state an actionable claim of harassment. See Cobb
v. Department of the Treasury, Request No. 05970077 (March 13, 1997).
Accordingly, the agency's final decision dismissing complainant's
complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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), 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 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 (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
December 16, 2005
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
0 1Complainant alleged that in a phone conversation with a Retirement
Specialist she asked him �Are you Black?�; he further alleged that when
he called back to check on his annuity she told him �this WILL BE the last
time that I talk to you�; subsequently, complainant contends, his calls to
the Retirement Specialist's supervisor were ignored; finally, the agency
failed or refused to provide him with an official financial statement
outlining how it computed his annuity and resulting deductions.