[Redacted], Candi R., 1 Complainant,v.Dr. Kilolo Kijakazi, Acting Commissioner, Social Security Administration, Agency.

Equal Employment Opportunity Commission

Sep 23, 2021

Appeal No. 2020004278 (E.E.O.C. Sep. 23, 2021)

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION Office of Federal Operations P.O. Box 77960 Washington, DC 20013 Candi R.,1 Complainant, v. Dr. Kilolo Kijakazi, Acting Commissioner, Social Security Administration, Agency. Appeal No. 2020004278 Agency No. CHI-19-0938 DISMISSAL OF APPEAL Initially, we note that EEOC Regulation 29 C.F.R. § 1614.403(d) provides that any statement or brief filed on behalf of a complainant in support of the appeal must be submitted to the Office of Federal Operations within 30 days of filing the notice of appeal. Complainant, we note, has uploaded thousands of documents after the expiration of the 30-day period for filing statements or briefs. Complainant is advised that the Commission did not consider any document submitted after August 20, 2020. Regarding the documents submitted before August 20, 2020, Complainant, for the most part, did not explain their relevance to the matter before us in this appeal. In the future, she is strongly advised to adhere to the Commission’s regulations and procedures. Complainant was employed as a Legal Assistant, GS-8, with the Agency’s Office of Hearings Operations in Oak Brook, Illinois from July 2007 until March 15, 2019. On September 9, 2019, she filed an appeal with the Merits Systems Protection Board (MSPB) from the Agency’s action terminating her employment, effective September 9, 2019. The MSPB accepted jurisdiction over Complainant’s appeal and docketed it as MSPB Docket No. CH-0752-19-0568-I-1. On November 13, 2019, the Office of Personnel Management (OPM) approved Complainant’s application for disability retirement finding her disabled from the Legal Assistant position. Therefore, on November 25, 2019, during a status conference, Complainant requested that her MSPB appeal be dismissed because she had been granted a disability retirement. 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. 2020004278 2 Her appeal was dismissed without prejudice because she had not yet received her annuity from OPM, and it was anticipated the annuity would retroactively apply to the day she was last in a work status. Complainant subsequently refiled her appeal with the MSPB because she maintained that the Agency violated the terms of a “retirement annuity settlement” that the parties had allegedly entered. She claimed that the settlement concerned her unlawful termination and would have provided her with a regular retirement at the level of an attorney. The Agency stated that it did not enter into a settlement with Complainant. In a decision issued on June 10, 2020, the MSPB dismissed Complainant’s appeal after finding that she did not produce a fully executed settlement agreement, show evidence regarding an oral settlement agreement, and failed to show the Agency breached an alleged settlement agreement.2 Complainant filed a Petition for Review with the MSPB that is currently pending. On July 21, 2020, Complainant filed an appeal with the Commission stating, in pertinent part, that: The agency was supposed to upload my EEOC and MSPB Appeal to my pending appeal CH-0752-19-0568-I-2, with my reinstatement eligibility[;] retroactive pay; promotion as an Attorney with an honorary degree; a house[;] with punitive and compensatory damage monetary awards; and full regular retirement. I never received the Retirement Annuity Agreement from [Agency officials #1, #2, and #3].3 We find that, to the extent Complainant is attempting to appeal the MSPB’s dismissal of her allegation that the Agency violated a Retirement Annuity Settlement or Agreement, the Commission has no jurisdiction over these types of procedural determinations by the MSPB. Moreover, Complainant acknowledges that this matter is still pending before the MSPB. Finally, with respect to her termination, Complainant was given appeal rights to the MSPB, and properly filed an appeal that was subsequently withdrawn. Accordingly, for the reasons stated above, we hereby dismiss Complainant’s appeal. 2 MSPB Docket Number CH-0752-19-0568-I-2 (June 10, 20220). 3 Although Complainant referenced filing an EEO complaint in August 2019, because the Union and management failed to deliver her retirement final documents, we note that the record contains an email, dated July 11, 2019, where Complainant tells an EEO Specialist that “[p]er our counseling telephone call, please ‘withdraw’ my EEO complaint. That complaint was designated as CHI-19-0938. 2020004278 3 STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0920) The Commission may, in its discretion, reconsider this appellate decision if Complainant or the Agency submits a written request that contains arguments or evidence that 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 for reconsideration must be filed with EEOC’s Office of Federal Operations (OFO) within thirty (30) calendar days of receipt of this decision. If the party requesting reconsideration elects to file a statement or brief in support of the request, that statement or brief must be filed together with the request for reconsideration. A party shall have twenty (20) calendar days from receipt of another party’s request for reconsideration within 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). Complainant should submit his or her request for reconsideration, and any statement or brief in support of his or her request, via the EEOC Public Portal, which can be found at https://publicportal.eeoc.gov/Portal/Login.aspx. Alternatively, Complainant can submit his or her request and arguments to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, via regular mail addressed to P.O. Box 77960, Washington, DC 20013, or by certified mail addressed to 131 M Street, NE, Washington, DC 20507. In the absence of a legible postmark, a complainant’s request to reconsider shall be deemed timely filed if OFO receives it by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. An agency’s request for reconsideration must be submitted in digital format via the EEOC’s Federal Sector EEO Portal (FedSEP). See 29 C.F.R. § 1614.403(g). Either party’s request and/or statement or brief in opposition must also include proof of service on the other party, unless Complainant files his or her request via the EEOC Public Portal, in which case no proof of service is required. Failure to file within the 30-day time period will result in dismissal of the party’s request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted together with the 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). 2020004278 4 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 23, 2021 Date