0120161083
05-12-2016
Jasper S.,1 Complainant, v. Carolyn W. Colvin, Acting Commissioner, Social Security Administration, Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Jasper S.,1
Complainant,
v.
Carolyn W. Colvin,
Acting Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120161083
Agency No. NY150749SSA
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated December 23, 2015, 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. 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 had been retired from the Agency since 1990, where he previously worked as a Field Representative in the Agency's Peru, Illinois and Menola, New York District Offices.
On October 2, 2015, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of age (undisclosed), disability (anxiety, dysthymia (persistent depressive disorder)) and reprisal for prior protected EEO activity when:
1. On an unspecified date, the Agency failed to process his Freedom of Information Act ("FOIA") request for documentation to supplement his brief in support of his prior claim; and
2. On an unspecified date, the Agency failed to accept a supplemental brief he submitted in support of a prior EEO Settlement Agreement (Agency No. SSA45789), and proceeded without the additional material.
On or around March 27, 1994, Complainant and the Agency entered into a settlement agreement to resolve four EEO claims that Complainant brought against the Agency between 1989 and 1991.2 In relevant part, the 1994 settlement agreement provided that Complainant would withdraw his EEO claims, and in exchange, the Agency would pay him $5,000. On December 13, 1994, Complainant notified the Agency's EEO Manager that he had not received the $5,000, and on December 20, 1994, the EEO Manager provided Complainant with the proper contact and informed him he must submit a written statement that he had not received the check so that it could be reissued. Complainant did so on January 15, 1995. Complainant alleges he never received a response. Over the years, Complainant contacted numerous public officials, unsuccessfully pleading for assistance to recover the $5,000.
In June 2014, Complainant inquired with this Commission about the non-receipt of the $5000. We forwarded the matter to the Agency as it appeared Complainant was alleging breach of settlement. The Agency was unable to locate any information on the matter in its current records which only date back to fiscal year 2000. On July 3, 2014, we docketed Complainant's inquiry as a breach of settlement appeal. On December 16, 2014, after a thorough review of the record, the matter was dismissed as time barred under the Doctrine of Laches. See Benavidez v. Dep't of the Navy, EEOC Appeal Nos. 0120111984, 0120110811 (July 19, 2011) Complainant's request for reconsideration was denied on May 13, 2015.3 Approximately one month later, Complainant contacted his EEO Counselor with the instant complaint.
The Agency dismissed Complainant's claims pursuant to 29 C.F.R. � 1614.107(a)(1) for failure to state a claim, arguing that the matters raised in the instant complaint are identical to those raised in a previous complaint or request for pre-complaint counseling.
ANALYSIS AND FINDINGS
EEOC Regulation 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 or disabling condition. 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. See Diaz v. Dep't of the Air Force, EEOC Request No. 05931049 (April 21, 1994)
Claim 1
An employee cannot use the EEO complaint process to lodge a collateral attack on another proceeding. See Wills v. Dep't of Defense, EEOC Request No. 05970596 (July 30, 1998); Kleinman v. United States Postal Serv., EEOC Request No. 05940585 (Sep. 22, 1994); Lingad v. United States Postal Serv., EEOC Request No. 05930106 (June 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 or pursuing a claim with the Office of Workers Compensation Programs ("OWCP"). This Commission has previously found that processing FOIA requests is another forum's proceeding, outside the purview of the EEOC. See Hartley v. Dep't of Transportation, EEOC Appeal No. 0120120014 (Aug. 1, 2013)
Here, Complainant alleges that the Agency has failed to properly adhere to the FOIA process. The proper forum for Complainant to raise concerns regarding compliance with the FOIA process is through the Agency's FOIA office, not the EEO complaint process. Hartley, supra.
Claim 2
Under the doctrine of res judicata, a party is estopped "from establishing jurisdiction in a second forum when the involved issues have been decided or could have been raised and adjudicated in previous litigation prompted by the same controversy between the same parties." See Rizzo v. United States Postal Serv., EEOC Appeal No. 01982338 (Feb. 17, 1999) (quoting Aho v. Dep't of Agriculture, EEOC Request No. 05860085 (May 22, 1987)) Res judicata bars not only the raising of identical claims in subsequent litigation, but also bars claims that might have been raised in the prior action. See Malone v. Dep't of the Treasury, EEOC Request No. 05940242 (Sept. 9, 1994) For instance, in Bezelik v. Nat'l Security Agency, we found that a complainant's claim alleging the agency failed to recommend him for a promotion, was also raised, and ultimately adjudicated, in a separate non-selection claim concerning the same position, thereby precluding further adjudication of the "failure to recommend" claim under the doctrine of res judicata, irrespective of the bases raised in connection with complainant's ultimate non-selection for promotion. EEOC Request No. 0520011104 (May 8, 2003).
Claim 2 of the instant complaint, though couched as a "new" claim of discrimination, is really an attempt by Complainant to resurrect his prior complaint; which asked "whether the Agency breached Complainant's settlement agreement when it allegedly failed to pay him the $5,000 agreed to under his March 1994 settlement, despite Complainant's numerous efforts to obtain the payment." Claim 2 alleges that the Agency acted in violation of EEO statutes, requiring a different legal analysis under � 1614.107. However, inherent to Complainant's allegation in Claim 2 is the assumption that it is possible for him to recover the $5000 allegedly owed for the 1994 Settlement Agreement. This matter was already adjudicated in Complainant's prior complaint, in which we found that he is time barred from recovering from the 1994 Settlement Agreement. Hence, the doctrine of res judicata precludes Complainant from bringing Claim 2 before the Commission. See Migra v. Warren City School District Board of Ed., 104 S. Ct. 892 (1984); Magallanes v. Dep't of Justice, EEOC Request No. 05900176 (July 13, 1990); Means v. Dep't of Labor, EEOC Appeal No. 01942654 (April 5, 1995); see also Rizzo, supra.
CONCLUSION
Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0416)
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), 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. The requests 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 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 12, 2016
__________________
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 EEOC Nos. 0119901352, 0119911840, 0119913781 & 0519900954.
3 EEOC Appeal No. 0120142379 (Dec. 16, 2014) reconsideration denied EEOC Request No. 0520150208 (May 13, 2015) hereinafter the "prior complaint."
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