0120181323
05-25-2018
Ian S,1 Complainant, v. Robert L. Wilkie, Jr., Acting Secretary, Department of Veterans Affairs, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Ian S,1
Complainant,
v.
Robert L. Wilkie, Jr.,
Acting Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 0120181323
Agency No. 200306712018100629
DECISION
Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated February 20, 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 worked as a Former Housekeeper, WG-2 at the Agency's Medical Center facility in San Antonio, Texas.
The record indicates that Complainant had an appeal pending before the Merit Systems Protection Board (MSPB) regarding a removal action. At the time, Complainant was represented by his non-attorney Representative. The MSPB appeal was resolved by settlement agreement dated June 2, 2017. The Agency agreed to pay Complainant $ 15,000 and provide him with a Standard Form 50 to reflect that Complainant resigned from his employment with the Agency effective February 12, 2017. In exchange, Complainant agreed to voluntarily waive, withdraw and forever discharge the Agency from any and all actions, claims, complaints, MSPB appeals, EEO complaints, grievances, appeals, proceedings, and court actions including but not limited to MSPB docket number DA-0752-17-0254-I-1. By Initial Decision dated June 5, 2017, the MSPB dismissed Complainant's appeal based on settlement agreement.
The Representative filed a petition for enforcement with the MSPB on August 27, 2017, asserting that the Agency did not comply with the provisions of the settlement agreement. The MSPB denied the petition finding that the Agency had complied with all the provisions of the settlement agreement. The Representative argued that the Agency failed to provide him with the payment of $ 15,000. The MSPB Administrative Judge (MPSB AJ) determined that the Agency produced evidence that Complainant received the proper payment as directed in the settlement agreement. The Agency indicated that on June 9, 2017, the Human Recourses Specialist contacted Complainant directly and had him sign a Vendor File Request so that it could provide him with the payment agreed upon in the settlement agreement. The Agency produced for the MSPB AJ a computer screenshot reflecting that the payment had been made to Complainant. The Agency also submitted a corrected Standard Form 50 as agreed upon in the settlement agreement. The MSPB AJ noted that the Representative did not dispute the Agency's assertion that it made a timely payment and issued Complainant a new retirement document. As such, by Initial Decision dated October 4, 2017, the MSPB AJ denied Complainant's petition for enforcement.
By letter dated October 22, 2017, addressed to the Agency, the Representative argued that the settlement agreement signed by the parties on June 3, 2017 should be voided for Complainant signed documents under coercion. When the Agency failed to respond to the Representative's letter, he contacted the Agency officials by email. On December 1, 2017, the EEO Counselor conducted the initial interview with Complainant and the Representative. The Representative indicated to the EEO Counselor that Complainant was coerced into signing documents without the Representative on July 15, 2017. However, the Representative did not provide the EEO Counselor with the alleged documents.
When the matter could not be resolved informally, on December 13, 2017, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of disability and reprisal for prior protected EEO activity under Section 501 of the Rehabilitation Act of 1973 when, on or about July 15, 2017, Complainant was subjected to discrimination and harassment.
The Agency dismissed the claim of discrimination pursuant to 29 C.F.R. � 1614.107(a)(2) finding that Complainant failed to raise his claim before the EEO Counselor. The Agency indicated that Complainant had asserted a new claim in his formal complaint which he did not raise with the EEO Counselor. In addition, the Agency dismissed the matter pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim noting that Complainant did not allege events which constituted a viable claim of harassment. The Agency noted that, to the extent Complainant alleged discrimination regarding coercion to get him to sign documents without the Representative on July 15, 2017, the Agency found that the matter should be dismissed pursuant to 29 C.F.R. � 1614.107(a)(2) for untimely EEO Counselor contact. The Agency noted that Complainant contacted the EEO Office on October 22, 2017, regarding an event which occurred on July 15, 2017, well beyond the 45-day time limit. Therefore, the Agency dismissed the complaint as a whole.
This appeal followed. On appeal, the Representative argued the Agency contacted Complainant to obtain his signature on documents without contacting the Representative. He also noted that the Agency was aware that Complainant has a mental disability and coerced him to sign documents without proper representation. The Representative asserted that the Agency's action constituted discrimination in violation of the Rehabilitation Act. In addition, the Representative argued that they contacted the EEO Counselor in a timely manner. The Representative stated that the MSPB agreement was signed in June 2017. He learned of the Agency's action in late September 2017, when he filed a motion for enforcement with the MSBP. Once he learned of the Agency's actions, he contacted the Agency's EEO Office in mid-October 2017. Therefore, the Representative argued that the matter should be remanded back to the Agency for processing.
ANALYSIS AND FINDINGS
The regulation set forth at 29 C.F.R. � 1614.107(a)(1) provides, in relevant part, that an agency shall dismiss a complaint that fails to state a claim. An agency shall accept a complaint from any aggrieved employee or applicant for employment who believes that he or she has been discriminated against by that agency because of race, color, religion, sex, national origin, age, disabling condition, genetic information, or reprisal. 29 C.F.R. �� 1614.103, .106(a). The Commission's federal sector case precedent has long defined an "aggrieved employee" as one who suffers a present harm or loss with respect to a term, condition, or privilege of employment for which there is a remedy. Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994). The Commission has held that an employee cannot use the EEO complaint process to lodge a collateral attack on another proceeding. See Wills v. Dep't of Def., EEOC Request No. 05970596 (July 30, 1998); Kleinman v. U.S. Postal Serv., EEOC Request No. 05940585 (Sept. 22, 1994); Lingad v. U.S. Postal Serv., EEOC Request No. 05930106 (June 25, 1993).
Upon review of the Representative's initial letter filed on October 22, 2017, we find that Complainant through the Representative sought to void the settlement agreement signed on June 3, 2017, resolving his MSPB appeal. We note that the Representative initially raised his claim of breach before the MSPB. Subsequently, he raised the instant claim that the settlement agreement was void. In addition, he claimed that the Agency coerced Complainant to sign documents. Based on the finding by the MSBP AJ, it appears that the documents were required for the Agency to obtain compliance with a term of the settlement agreement. Therefore, we find that Complainant has alleged discrimination regarding actions taken by the Agency in implementing the terms of the settlement agreement. In the alternative, Complainant has alleged that the settlement agreement should be considered void for the Agency's alleged coercion.
We cannot issue decisions on allegations involving a possible breach or voiding of the MSPB Agreement because it would constitute a collateral attack on the MSPB proceeding. See e.g. Fisher v. Dep't of Defense, EEOC Request No. 05931059 (July 15, 1994) (finding that a "collateral attack, by definition, involves a challenge to another forum's proceeding" and cannot state a claim of discrimination). To the extent Complainant is alleging that the Agency breached an agreement obtained during the MSBP process, we have previously found that the proper forum for a claim of noncompliance with an MSPB settlement agreement is not this Commission, but rather the MSPB itself. See Gilmore v. U.S. Postal Serv., EEOC Appeal No. 0120043520 (Mar. 17, 2005). As such, we conclude that the matter at hand should be dismissed pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim. Because we have found that the matter should be dismissed pursuant to 29 C.F.R. � 1614.107(a)(1), we need not address the Agency's other bases for dismissal of the complaint at hand.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final decision dismissing the complaint at hand, albeit on alternative grounds.
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
May 25, 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.
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