0120101050
06-02-2010
Reginald Sydnor, Complainant, v. John Berry, Director, Office of Personnel Management, Agency.
Reginald Sydnor,
Complainant,
v.
John Berry,
Director,
Office of Personnel Management,
Agency.
Appeal No. 0120101050
Agency No. 2009016
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated December 1, 2009, dismissing his 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.
At the time of the events at issue, complainant was a former
Administrative Law Judge with the Social Security Administration1 and
a retired annuitant. On March 12, 2009, complainant filed a formal EEO
complaint alleging that he was subjected to discrimination on the basis
of reprisal for prior protected EEO activity when, on December 9, 2009,
the agency "forced" him to take a deferred retirement.
The agency dismissed the complaint on two grounds. First, the agency found
that complainant's filing of his formal complaint was untimely. The agency
asserted that complainant was issued a notice of right to file a formal
EEO complaint by electronic mail on February 10, 2009, but did not file
his complaint until March 12, 2009, twenty-nine days later and beyond
the fifteen-day limitation period. Second the agency determined that
the complaint constituted a collateral attack on the agency's retirement
process and hence failed to state a claim. The instant appeal followed.
On appeal, complainant argues that he was notified of his right to
file via email and that although the email is dated February 10, 2009,
he had "inconsistent access," Complainant's Appellate Brief, p. 2, to
his email account and did not open the email until February 29, 2009.
He maintains that the 15-day period should run from this date, and that
his March 12, 2009 formal complaint was therefore timely filed.
With regards to the collateral attack issue, complainant argues that
his claim is not a collateral attack on the retirement process because
he is not challenging the retirement process itself or expressing
dissatisfaction with the deferred retirement award he currently receives.
Rather, complainant asserts that he is alleging that the agency took
"actions to stall and block [him] from returning to disability retirement
when the agency removed him from federal employment, and then the
agency continued to block [his] return to federal employment." Id.,
p. 3. Complainant further argues that the agency took actions "which
manipulated [his] employment status and removal dates to specifically
stall and block [him] from returning to his former disability retirement
status. Likewise, after the Agency removal, the Agency then manipulates
[sic] the complainant's reemployment eligibility status to block and
assure the Complainant will never return to federal employment." Id.,
p. 4. Complainant maintains that such issues are not issues that can
be addressed in the retirement process.
In response, the agency maintains that the complaint was properly
dismissed as untimely filed. See Agency Brief, p. 9. The agency argues
that complainant did not ask for an extension of the time to file and
his filing was beyond the 15-day filing period following the sending of
the email notifying him of his right to file. Id. The agency further
argues that complainant consented to receive notification via email by
supplying his email address on his designation of representative form.
Id. In addition, the agency argues, his formal complaint was submitted
via email. Id.
With regards to the collateral attack issue, the agency argues that
complainant's claim stems from events that occurred in 1998. Following
debarment from federal employment by the agency and removal by the
Social Security Administration (SSA), complainant appealed both actions
to the Merit Systems Protection Board (MSPB) and then Federal District
Court and the United States Court of Appeals for the Fourth Circuit,
until the Supreme Court denied certiorari. See Agency Brief, pp. 2-3.
The agency maintains that complainant subsequently contacted the agency
requesting to have his records changed to reflect a removal date of
January 13, 1998 instead of December 30, 1998. See id., p. 3. The agency
references a decision it issued in October 18, 2004 denying his request
and finding that "your allegation that SSA made errors in determining the
date of your removal is an attack on the merits of underlying personnel
actions that could have been brought in other administrative proceedings."
See Complaint File. The agency argues that complainant then filed another
complaint in Federal District Court. In that filing, complainant again
defined one of the issues as whether the Court should direct the agency
to change complainant's removal date from December 1998 to January 1998,
arguing that his claim arose under the Privacy Act. See Agency Exhibit
2, p. 5. The Court dismissed the matter, finding that complainant
"is attempting to argue that SSA's determination as to which date he
should have been officially separated from federal service was flawed.
Because [complainant] is essentially attempting to challenge the merits
of SSA's underlying employment decision, his claim is not actionable
under the Privacy Act." Id., pp. 22-23. The agency argues that the
Court's ruling on this matter was affirmed by the US Court of Appeals
to the Third Circuit. See Agency Exhibit 8.
The agency notes that in his informal complaint intake sheet, complainant
said that he was being "forced to a different retirement instead of
disability retirement because [the agency] refuses to change his removal
date. Changing the removal date would make [complainant] eligible to have
his disability retirement reinstated." Agency Brief, p. 6. The agency
argues that a fair reading of complainant's complaint "makes it clear
that he is challenging his receipt of 'deferred retirement' rather than a
'disability retirement'" and that the FAD therefore correctly dismissed
the complaint as a collateral attack on the retirement process that
failed to state a claim. See id., p. 7.
The agency next argues that, to the extent complainant is arguing on
appeal that he is not challenging the agency's retirement process but is
arguing "that [the agency] manipulates his employment status and removal
dates to prevent him from returning to his former disability retirement
status," id, this challenge was already raised before the agency as
well as the Federal Courts. The agency maintains that "the underlying
issue is the nature of the retirement for which complainant is eligible.
He challenged [the agency's] determination that he was not eligible to
return to disability status through the retirement and other processes,
so he is precluded from collaterally raising a related claim through
the use of the EEO process," Id.
Finally, the agency argues that complainant's claim is precluded by res
judicata. Even assuming complainant is not challenging his retirement
benefits, the agency argues, but rather other underlying actions by the
agency, such issues have been "fully litigated and [are] final in two
jurisdictions," id., the Third and Fourth Circuits. According to the
agency, complainant is therefore precluded from raising them before the
Commission.
ANALYSIS AND FINDINGS
As a preliminary matter, we are unpersuaded by the agency's argument as
to the untimeliness of the formal complaint. 29 C.F.R. �1614.106(b)
provides that a formal complaint must be filed within fifteen days
of receipt by complainant of the agency's notice of right to file.
However, where, as here, there is an issue of timeliness, "[a]n agency
always bears the burden of obtaining sufficient information to support
a reasoned determination as to timeliness." Guy, v. Department of
Energy, EEOC Request No. 05930703 (January 4, 1994) (quoting Williams
v. Department of Defense, EEOC Request No. 05920506 (August 25, 1992)).
In the instant case, the agency has not met its burden of establishing
when complainant received the notice of right to file. The agency asserts
it sent the notice by electronic mail, but has not provided evidence
of when complainant received the notice.2 Therefore, we conclude that
the agency has not met its burden of supporting its dismissal decision
based on timeliness.
However, the agency also based its dismissal decision on alternative
grounds. 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). Thus, complainant cannot
use the EEO process to collaterally attack an adjudication relating
to retirement benefits under the jurisdiction of another proceeding
and agency. However, a fair reading of the complaint at issue reveals
that, in essence, complainant has claimed that the agency forced him
into deferred retirement by: 1) removing him from federal service, 2)
blocking his reinstatement to disability retirement, and 3) blocking
his return to federal service. Therefore, complainant correctly argues
that he is not directly attacking a decision concerning his retirement
benefits, but rather actions of the agency that resulted in his loss
of his federal position and his need to retire in the first place. As
such, we conclude that the agency incorrectly dismissed his claim as a
collateral attack on the retirement process.
However, we are persuaded that the issues related to complainant's
debarment and removal from his Administrative Law Judge position
have been fully litigated before the MSPB and the Fourth Circuit
Court of Appeals. Moreover, the Third Circuit Court of Appeals has
decided that there was no legal basis upon which to change the date
of complainant's removal. Absent such a change, complainant remains
ineligible for disability retirement. The Commission has previously held
that the doctrine of collateral estoppel is applicable to discrimination
claims. See Fitz-Gerald v. TVA, EEOC Request No. 05910573 (January 16,
1992). Furthermore, in Magnallanes v. Department of Justice, EEOC Request
No. 05900176 (July 13, 1990), the Commission noted that the doctrines of
res judicata and collateral estoppel both fall within the purview of "res
judicata," each concerning the preclusive effect of a prior adjudication.
Bezelik v. National Security Agency, EEOC Request No. 05A11104 (May 8,
2003).
As explained by the Commission in Magnallanes, the first doctrine is res
judicata itself, or claim preclusion. This approach provides that a final
judgment on the merits bars further claims by the same parties based on
the same claim or cause of action and issues relevant to that claim,
treating the judgment as the full measure of relief to be accorded
between the same parties. Under true res judicata, when the judgment
is rendered for the defendant, the plaintiff's claim is extinguished
and the judgment then acts as a bar. Id. The second doctrine under res
judicata is collateral estoppel or issue preclusion. It recognizes that
suits addressed to particular claims may present issues relevant to suits
on other claims. Thus, issue preclusion bars the re-litigation of issues
actually adjudicated and necessary to the judgment in a prior litigation
between the parties. Id.
Upon review, based on the evidence and argument now presented in
support of the instant appeak, we find that a fair reading of the claims
raised by complainant in his formal EEO complaint 1 was also raised,
and ultimately adjudicated, by the MSPB and Federal Circuit Courts.
Therefore, we find that the complaint is precluded by the doctrine of
res judicata, and must be dismissed.
Accordingly, albeit for other reasons, the agency's dismissal of the
complaint is 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
June 2, 2010
__________________
Date
1 In January 1998, the agency debarred complainant from his position as an
Administrative Law Judge for three years. As a result, he was placed on
suspension without pay, and eventually terminated from his employment.
2 It should be noted that our EEO complaint processing regulations
at 29 C.F.R. Part 1614 do not expressly address or define service by
electronic mail.
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0120101050
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0120101050