0120182221
09-18-2018
Cole E.,1 Complainant, v. Bill Johnson, President and Chief Executive Officer, Tennessee Valley Authority (TVA)), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Cole E.,1
Complainant,
v.
Bill Johnson,
President and Chief Executive Officer,
Tennessee Valley Authority (TVA)),
Agency.
Appeal No. 0120182221
Agency No. TVA-2018-0033
DECISION
On June 11, 2018, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated June 5, 2018, dismissing his complaint of unlawful employment discrimination in violation of Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was a former Nuclear Engineer, SC-4 who worked at the Agency's Browns Ferry Nuclear Plant in Athens, Alabama. He was terminated in 1992.2
Complainant's application for disability retirement with the TVA Retirement System (TVARS) was denied in 1993, albeit at some point he was granted a retirement based on "longevity distribution."3
On May 3, 2018, Complainant filed an equal employment opportunity (EEO) complaint alleging discrimination based on disability when on April 26, 2018, TVARS did not respond to his demand that it account for his entitlement, again denying him disability retirement, refusing to correct 26 years of continuing discrimination against him, and violating due process.
The Agency dismissed the complaint for failure to state a claim. It reasoned that TVARS is a separate entity from the Agency, and the EEO complaint is an impermissible collateral attack on the disability retirement process. The Agency referred to record TVARS Rules and Regulations that reflect that TVARS has an appeal process that allows a Complainant to challenge its denial of benefits, and once this administrative process is exhausted, a Complainant can file an action in a United States District Court. The Agency also dismissed the EEO complaint for stating the same claim previously decided by the Commission. It observed that the EEOC previously found that Complainant failed to timely initiate EEO counseling on his disability retirement claim. The Agency dismissed the complaint on additional grounds which we need not address here. The instant appeal followed.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. � 1614.107(a)(l) requires an Agency to dismiss a complaint that states the same claim that is pending before or has been decided by the agency or Commission.
We find that EEOC Appeal Nos. 0120121443 (Mar. 27, 2012), 0120123217 (Dec. 20, 2012), 0120130775 (May 8, 2013), 0120170098 (Mar. 9, 2017), and 0120181031 (Apr. 12, 2018) all dealt with the issue of Complainant's disability retirement. Complainant's claim that TVARS did not respond to his April 26, 2018 allegation it improperly denied his disability retirement benefit is not a new claim - it is a reiteration of his old claim in new clothes. The Commission previously decided that Complainant failed to timely initiate EEO contact on his disability retirement claim (Appeal No. 0120121443), and in Appeal Nos. 0120123217, 0120130775, 0120170098, and 0120181031, affirmed the dismissal of his subsequent EEO complaints about his disability retirement because they raised the same claim that was previously decided by the Commission.
Further, we agree with the Agency that Complainant's complaint fails to state a claim because it constitutes a collateral attack on the disability retirement process. The Commission has held that an employee may not use the EEO complaint process to lodge a collateral attack on another proceeding, including a disability retirement proceeding. Jesse R. v. Office of Personnel Management, EEOC Appeal No. 0120170455 (Mar. 30, 2017). We find that this applies to TVARS. TVARS has an appeal process, which when exhausted, a Complainant can file an action in a United States District Court.
The FAD is AFFIRMED.
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 (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 (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
September 18, 2018
__________________
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.
2 The above biographical information was obtained from the Commission's decision in EEOC Appeal No. 01963110 (Feb. 10, 1997).
3 This information was obtained from the Report of Investigation in EEOC Appeal 0120123217.
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