Michael Voice, Complainant,v.Linda M. Springer, Director, Office of Personnel Management, Agency.

Equal Employment Opportunity CommissionJan 13, 2009
0120073034 (E.E.O.C. Jan. 13, 2009)

0120073034

01-13-2009

Michael Voice, Complainant, v. Linda M. Springer, Director, Office of Personnel Management, Agency.


Michael Voice,

Complainant,

v.

Linda M. Springer,

Director,

Office of Personnel Management,

Agency.

Appeal No. 0120073034

Agency No. 2007018

DECISION

Complainant filed a timely appeal with this Commission from a final

agency decision, dated May 25, 2007, dismissing his formal 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. The Commission accepts the appeal

in accordance with 29 C.F.R. � 1614.405.

According to the agency, complainant filed a formal complaint claiming

he was subjected to discrimination based on his age and disability when,

in October 2005, his disability annuity was terminated. In its May

25, 2007 final decision, the agency dismissed the formal complaint for

failure to state a claim. The agency found that the claim, regarding the

termination of his disability annuity, was an impermissible collateral

attack on the agency's retirement process.

On appeal, complainant makes reference to the following language from

the final agency decision: "the proper forum for complainant to raise

his dissatisfaction with the termination of his disability annuity is

through the disability retirement process itself." Complainant states,

however, that his ". . . dissatisfaction with the retirement process

itself began when I initially applied for disability retirement on or

about May 1997." The remainder of complainant's appeal statement expands

upon his dissatisfaction with the retirement process.

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 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. Diaz v. Department of the Air Force, EEOC Request

No. 05931049 (April 21, 1994).

In the instant case, the Commission agrees that complainant has alleged

dissatisfaction with his disability retirement. 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). The proper forum for complainant to have raised his challenges

to actions which occurred during the disability retirement process was

at that proceeding itself. It is inappropriate to now attempt to use

the EEO process to collaterally attack actions which occurred during

the retirement process.

Accordingly, the agency's decision was proper and is hereby AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M1208)

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 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 (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 (Z1008)

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

January 13, 2009

__________________

Date

2

0120073034

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

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0120073034