0120081525
05-23-2008
Milbern J. Adams, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
Milbern J. Adams,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120081525
Agency No. SEA-07-2290-SSA
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity
Commission (EEOC or Commission) from the final agency decision (FAD)
dated January 8, 2008, dismissing his 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 the
Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29
U.S.C. � 621 et seq. Complainant is an Administrative Law Judge with
the agency. In his complaint, complainant alleged that he was subjected
to discrimination based on reprisal for prior protected EEO activity
and that the agency violated a May 30, 2007, settlement agreement the
parties entered into when:
1. on or about June 26, 2007, the agency filed a complaint with the Merit
Systems Protection Board (MSPB) seeking to suspend him for 14 days.
The FAD dismissed the claim for failure to state a claim and because it
alleged that a proposal to take a personnel action, or other preliminary
step to taking one, is discriminatory. 29 C.F.R. � 1614.107(a)(1)
and .107(a)(5). It reasoned that there was no adverse action, that the
matter did not rise to the level of harassment, and that the complaint
regarded a proposed suspension. The FAD did not address complainant's
breach claim.
On May 9, 2008, the MSPB ruled in an initial decision on the agency's
complaint under MSPB docket number CB-7521-07-0022-T-1. It ruled that
it received the complaint pursuant to 5 U.S.C. � 7521, and accepted
jurisdiction over the matter under 5 U.S.C. �� 7521 and 7701(a). It found
that good cause existed for the imposition of a 14 day suspension.
It reasoned, as charged in the agency complaint, that on January 18, 2007,
complainant did not cooperate at an EEOC hearing by refusing to testify
about the performance of an employee who was under his supervision.
The initial decision also found that complainant failed to show that
the discipline sought by the agency was in retaliation for prior EEO
activity.
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). It is inappropriate to file a
separate administrative EEO complaint to collaterally attack actions
taken before the MSPB.
The May 30, 2007, settlement agreement, effective June 6, 2007, in
relevant part, provided:
The agency and its officers and employees involved in this agreement
will not file any administrative or judicial action against complainant,
with respect to any action that is related to or arises out of these
complaints [all prior complaints and requests for EEO counseling], the
events underlying these complaints, or complainant's pursuit of these
complaints that occurred prior to the effective date of this settlement
agreement.
The agency contended that the suspension proceedings were unrelated to,
nor arose from actions or events underlying EEO complaints complainant
previously filed. It indicated that the complaints, generally, centered
on his removal from management, subsequent non-selections for management
positions, allegations of constructive removal, and denial of a travel
docket.
On appeal, complainant argues that the agency complaint filed with
the MSPB violated the settlement agreement, contending it regarded all
matters related to EEO activities. We disagree. The settlement agreement
restricted agency action regarding prior complaints and requests for EEO
counseling by complainant, not his testimony as a witness in someone
else's EEO complaint. As complainant does not contend he requested
EEO counseling or filed a complaint regarding this matter prior to the
effective date of the settlement agreement, he has not shown a breach
occurred.
The FAD is affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0408)
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 (S0408)
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 (Z0408)
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
May 23, 2008
__________________
Date
01 & 07 Procedural Case Code Sheet - INTERNAL CIRCULATION ONLY
Initials Date TO: Carlton M. Hadden, Director, Office
of Federal Operations Robbie Dix III, Acting Director,
Appellate Review Programs FROM: Todd Denicoff, Attorney 5/22/08
Mary Jean Secoolish, Supervisor Catherine McNamara,
Division Director Appeal Number(s) 0120081525 Agency Number(s)
SEA-07-2290-SSA Hearing Number(s) Complainant(s): Milbern J. Adams
Agency: SSA Decision: Affirm Statute(s) Alleged Title VII and ADEA
Basis(es) Alleged Entered into IMS Issue(s) Alleged Entered into IMS
(Where Discrimination Is
Found Only): (A) Basis(es) For Finding: (B) Issues In Finding
(Check All Applicable Codes) Procedural Codes ? 3K - Procedural
Decision
? 3N - Appeal Denied/Dismissed
? 3P - Adverse Inference
? 4H - OFO Affirmed FAD
? 3M - OFO Reversed and Remanded
? 4J - OFO Modified FAD
? 3L - OFO Vacated/Remanded ALL of
Agency's Merits Decision
? 4Q - Compliance required ? 3B - FAD Rescinded
? 3C - Duplicate Docket Number
? 3D - Withdrawal
? 3E - Complaint Settled
? 3G - Other Letter Closure
? 3R - Return to Agency for Consolidation
? 3S - Return to AJ for Consolidation
? 7N - Civil Action Filed Merits Settlement Codes ? 4A - Merits
decision
? 4R - OFO found settlement breach
? 4S - OFO found no settlement breach
? 4E - Agency found settlement breach
? 4F - Agency found no settlement breach
? 4H - OFO affirmed agency
? 4I - OFO reversed agency
? 4J - OFO modified agency (NOTE: if affirmed
In part and reversed in part, then (3L)
Code required if at least one issue is
remanded) ? 3L - OFO remanded PART of the agency's
merits decision (NOTE: If breach is
basis, use of 3L also requires 4I code)
? 3P - Adverse inference
? 5R - class complaint certified
? 5S - class complaint not certified (class requirements not met)
? 5T - class complaint not certified (procedural dismissal)
? 5U - class complaint certification remanded for additional discovery
? 4Q - Compliance required
Revised 6/22/05
ARP Companion Case Checklist
Complainant Agency Appeal/Request/Petition No. Milbern J. Adams SSA
0120081525
OPEN CASES
Appeal No. ORADS Status Related (Yes/No) Actions Taken None
CLOSED CASES
Appeal No. ORADS Status Related (Yes/No) Actions Taken 01A54409 2x
No Letter closure, FAD rescinded 0120064059 2x No Affirmed procedural
dismissal
CLASS ACTION CASES
Appeal No. ORADS Status Related (Yes/No) Actions Taken
Todd Denicoff 5/22/08
Attorney Date
2
0120081525
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P. O. Box 19848
Washington, D.C. 20036
4
0120081525
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