0120122541
10-15-2012
Kelly Jean West, Complainant, v. Michael J. Astrue, Commissioner, Social Security Administration, Agency.
Kelly Jean West,
Complainant,
v.
Michael J. Astrue,
Commissioner,
Social Security Administration,
Agency.
Appeal No. 0120122541
Agency No. BOS120021SSA
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated April 13, 2012, dismissing her 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a former Teleservice Representative at the Agency's Boston Teleservice Center facility in Boston, Massachusetts.
On January 23, 2012, Complainant filed a formal complaint alleging that the Agency subjected her to harassment and a hostile work environment on the bases of age (43) and reprisal for prior protected EEO activity when, on September 23, 2011, garnishment of her paycheck began due to the Agency pursuing collection of over 200 hours of advanced sick leave, 80 hours of annual leave, and debt over health insurance premiums when the Agency charged her with eight months of being absent without official leave (AWOL).
Briefly, the record shows that Complainant requested a hardship transfer in 2006. It was denied, but Complainant refused to return to work and eventually resigned in 2007. In 2009, Complainant received a letter from the Agency stating she owed $6068.00 as reimbursement for advance sick and annual leave during her absence, as well as health insurance premiums paid by the Agency. Complainant indicated that the debt was challenged in an arbitration. In April 2010, Complainant was informed that since the arbitration had come to a close the debt was due. Eventually, the debt was turned over to the Department of the Treasury, from whom Complainant received a letter in June 2011. The letter informed her the debt had increased to $7160.95. In July 2011, Complainant was informed by Treasury that the debt was now $9206.23 and her pay checks would be garnished. The Department of the Treasury applied all of Complainant's 2008 tax refund to the debt she owed. In September 2011, garnishment of the paychecks began.
The Agency dismissed the complaint for failure to state a claim, stating that the complaint was a collateral attack on the Department of the Treasury's debt collection efforts and that she should raise her claims therein. The Agency indicated that the claims of harassment relate to the garnishment and as such do not state an independent claim.
The instant appeal followed. In response to Complainant's appeal, the Agency argued that to the extent Complainant alleges she was constructively discharged when she resigned in 2007, that claim was untimely raised as Complainant did not contact an EEO counselor until October 11, 2011.
ANALYSIS AND FINDINGS
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). The proper forum for Complainant to have raised her challenges to actions involving the collection of the debt and garnishment by the Department of the Treasury is within that process. It is inappropriate to now attempt to use the EEO process to collaterally attack actions which involve the Department of Treasury collection efforts.
The Commission finds that the complaint fails to state a claim under the EEOC regulations because Complainant failed to show that she suffered 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).
Further, to the extent Complainant alleged she was constructively discharged, we agree that she failed to contact an EEO counselor in a timely manner. Complainant resigned in 2007 and contacted the counselor in October 2011. The Commission has consistently held that a complainant must act with due diligence in the pursuit of her claim or the doctrine of laches may apply. See Becker v. United States Postal Serv., EEOC Appeal No. 01A45028 (November 18, 2004) (finding that the doctrine of laches applied when complainant waited over two years from the date of the alleged discriminatory events before contacting an EEO Counselor); O'Dell v. Department of Health and Human Serv., EEOC Request No. 05901130 (December 27, 1990). The doctrine of laches is an equitable remedy under which an individual's failure to pursue diligently her course of action could bar her claim. Complainant waited almost five years from the date of the alleged discriminatory event before she contacted an EEO Counselor in October 2011. Complainant has failed to provide sufficient justification for extending or tolling the time limit.
Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0610)
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 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 77960, Washington, DC 20013. 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 (Z0610)
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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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
October 15, 2012
__________________
Date
2
0120122541
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120122541