0120102745
12-14-2011
Sharon D. Holland, Complainant, v. Kathleen Sebelius, Secretary, Department of Health and Human Services (Centers for Disease Control and Prevention), Agency.
Sharon D. Holland,
Complainant,
v.
Kathleen Sebelius,
Secretary,
Department of Health and Human Services
(Centers for Disease Control and Prevention),
Agency.
Appeal No. 0120102745
Hearing No. 410-2010-00091X
Agency No. HHS-CDC-0015-2009
DECISION
Complainant filed a timely appeal with this Commission from the
Agency's decision dated September 8, 2009, dismissing her 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked at
the Agency’s Centers for Disease Control facility in Atlanta, Georgia.
On November 26, 2008, Complainant filed a formal complaint alleging that
the Agency subjected her to discrimination on the bases of disability
(Thoracic Subluxation, Lumbosacral Strain) and reprisal for her claim
with the Office of Workers’ Compensation Program (OWCP) when, she was
subjected to harassment in terms of violations as to her OWCP claim.
In her formal complaint, Complainant included a document, 22-pages
long, listing a series of events Complainant believed constituted
discrimination. Complainant raised several claims pertaining to the
processing of and administration of her claim with OWCP pertaining to
her OWCP approved injury. Complainant also alleged that the Agency’s
actions constituted violations of the regulations pertaining to OWCP
and cited to the Federal Employees’ Compensation Act as support for
her EEO complaint.
Subsequently, on February 18, 2009, Complainant was notified that her
position would be terminated effective March 4, 2009. On February 26,
2009, Complainant filed a mixed case appeal with the MSPB, docketed
as MSPB Docket No. AT-0752-09-0376-I-1. On March 2, 2009, Complainant
also requested that her pending EEO complaint be amended to include the
termination claim.
On September 8, 2009, the Agency issued its final decision dismissing the
complaint. The Agency presented Complainant’s claim of discrimination
as 15 separate events alleged by Complainant. The Agency dismissed a
number of the claims for failure to state a claim pursuant to 29 C.F.R. §
1614.107(a)(1). The Agency noted that Complainant’s claim involved the
processing of her OWCP matter which constituted a collateral attack on
the OWCP process. Further, the Agency dismissed the termination claim
pursuant to 29 C.F.R. § 1614.107(a)(4) for raising the same matter
before MSPB.
The record indicated that Complainant did not receive the Agency’s
dismissal decision. Not hearing from the Agency over nine months,
on December 2, 2009, Complainant requested a hearing before an EEOC
Administrative Judge (AJ). The AJ requested that the Agency provide
him with the record. The Agency informed the AJ that it had dismissed
the matter in September 2009. The record indicated that Complainant
did not receive the Agency’s dismissal until April 2010. On May 18,
2010, the AJ issued an Order of Dismissal. The AJ found that the Agency
tried to send Complainant the dismissal notice both via first class mail
and then with certificate of service. The AJ held that the Agency used
due diligence to mail the decision. There apparently was an issue with
the address the Agency had for Complainant. The AJ dismissed the matter
and provided Complainant with appeal rights to the Commission.
Following the AJ’s Order, Complainant filed the instant appeal.
On appeal, without specific explanation, Complainant argued that the
Agency failed to provide her with a reasonable accommodation in failing
to reassign her and resulting in her termination in violation of the
Rehabilitation Act. Then Complainant included a copy of her formal
complaint. The Agency failed to directly respond to Complainant’s
appeal.
ANALYSIS AND FINDINGS
Termination Claim
A mixed case complaint is a complaint of employment discrimination filed
with a federal agency, related to or stemming from an action that can be
appealed to the MSPB. 29 C.F.R. § 1614.302(a)(1). An aggrieved person
may initially file a mixed case complaint with an agency or may file
a mixed case appeal directly with the MSPB, pursuant to 5 C.F.R. §
1201.151, but not both. 29 C.F.R. § 1614.302(b). 29 C.F.R. §
1614.107(a)(4) provides that an agency shall dismiss a complaint where
the complainant has raised the matter in an appeal to the MSPB and 29
C.F.R. § 1614.302 indicates that a complainant has elected to pursue
the non - EEO process. We note that Complainant filed a mixed case
appeal with the MSPB on February 26, 2009, regarding the termination.
The Commission notes that Complainant subsequently withdrew her mixed
case appeal. On April 23, 2009, the MSPB issued its initial decision
dismissing the matter based on Complainant’s withdrawal.
Once Complainant elects to proceed in the MSPB forum, the withdrawal
of her appeal does not negate her prior election. See Hammond
v. Gen. Serv. Admin., EEOC Request No. 05940428 (August 25, 1994);
Cox v. U.S. Postal Serv., EEOC Request No. 01943638 (March 31, 1995).
Furthermore, Complainant was aware of her election rights. Consequently,
we find that Complainant elected to proceed with the MSPB and, therefore,
cannot file an EEO complaint on the same matter. As such, we find that
the termination claim was properly dismissed by the Agency pursuant to
Claims Regarding Alleged Violations of OWCP laws
As to Complainant’s remaining claims of discrimination, we find
that the Agency properly dismissed the matter pursuant to 29 C.F.R. §
1614.107(a)(1) for failure to state a claim. We note that Complainant
stated for the first time on appeal that she was denied a reasonable
accommodation for her OWCP claimed injury. However, we note that it is
the first time Complainant has alleged that she was not reassigned for
her OWCP injury. Further, in support of her appeal, Complainant provided
a copy of her formal complaint. As stated earlier, in Complainant’s
formal complaint alleged, “Ongoing violations of OWCP laws pertaining
to [her] claim number.” We find that Complainant’s formal complaint
was a complaint regarding the Agency’s processing of her OWCP claim
and how the Agency violated OWCP regulations. Further, Complainant
indicated that she was subjected to harassment because of her OWCP claim.
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 regarding the
processing of her OWCP claim was with the Department of Labor. It is
inappropriate to now attempt to use the EEO process to collaterally
attack actions which occurred during the processing of her OWCP claim.
CONCLUSION
Based on a thorough review of the record and the contentions on appeal,
including those not specifically addressed herein, we AFFIRM the
Agency’s final decision dismissing the complaint at hand.
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
December 14, 2011
__________________
Date
2
0120102745
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120102745