01985408
01-12-2000
Sylvia Oshiver, Complainant, v. Janice R. Lachance, Acting Director, Office of Personnel Management, Agency.
Sylvia Oshiver, )
Complainant, )
)
v. ) Appeal No. 01985408
Janice R. Lachance, ) Agency No. 97-25
Acting Director, )
Office of Personnel Management, )
Agency. )
____________________________________)
DECISION
On June 29, 1998, complainant filed a timely appeal with this Commission
from a final agency decision (FAD) received by her on June 21, 1998,
pertaining to her complaint of unlawful employment discrimination in
violation of Title VII of the Civil Rights Act of 1964, 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.<1> In her complaint,
complainant alleged that she was subjected to discrimination on the
bases of sex (female) and age (75) when:
The Office of Personnel Management (OPM) did not obey a Pennsylvania
State Court Order to pay the civil service annuity benefits of
complainant's husband to complainant as his court-appointed trustee; and
OPM refused to obey a Pennsylvania State Court Order to pay child and
spousal support out of the pension benefits of complainant's husband.
The agency dismissed complainant's claim pursuant to 64 Fed. Reg. 37,644,
37,656 (1999)(to be codified and hereinafter cited as 29 C.F.R. �
1614.107(a)(1)) for failure to state a claim. Specifically, the agency
stated that the court order obtained by complainant was not a valid
instrument that would enable complainant to receive her husband's annuity
benefits. In addition, the agency dismissed complainant's complaint
under 64 Fed. Reg. 37, 644, 37, 656 (1999)(to be codified and hereinafter
referred to as 29 C.F.R. � 1614.107(d)) arguing that the same matter
was raised in an appeal to the Merit Systems Protection Board (MSPB).
Finally, the agency dismissed the complaint under 64 Fed. Reg. 37,644,
37,656 (1999)(to be codified and hereinafter cited as 29 C.F.R. �
1614.107(a)(2)), for untimely EEO Counselor contact. Specifically, the
agency argued that the most recent discriminatory act took place in 1985,
when OPM initially denied payment of the pension benefits to complainant.
The agency showed that OPM's denial of benefits was upheld by the MSPB in
1988, and affirmed by the United States Court of Appeals for the Federal
Circuit in 1990. Although, in 1992, a Pennsylvania court ordered OPM
to remit to complainant monies from her husband's pension benefits, OPM
again refused to make any payments to complainant. Thus, the agency
argues that the most recent event of alleged discrimination occurred
in either 1985 or 1992, in either case, well beyond the forty-five days
required by the EEOC regulations.
On appeal, complainant argues that she does state a valid claim.
Complaint contends that the Pennsylvania State Court Order upon
which her complaint relies is a valid legal instrument. In addition,
complainant claims that the same matter was not raised in an appeal
to the MSPB. Instead, complainant argues that the action before the
MSPB and the Federal Circuit was based on her application for pension
benefits on behalf of her missing spouse. Complainant states that her
husband is no longer missing but rather he has been found to be under
a legal disability and she argues that the current complaint alleges
discrimination in the form of the MSPB's refusal to pay pension benefits
as dictated by court order. Finally, complainant argues that the date
of the alleged discriminatory incident was May 27, 1997, and thus, her
contact with the EEO Counselor on July 3, 1997, was within the forty-five
day time period.
Volume 64 Fed. Reg. 37,644, 37,656 (1999)(to be codified and hereinafter
cited as 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 record
indicates that the complainant is not currently an employee or applicant
for employment, nor is there any evidence that complainant ever was an
employee of the Federal government. Therefore, we find that complainant
does not have standing to bring a claim of employment discrimination in
the present case.
Accordingly, the agency's decision to dismiss complainant's complaint
was proper and is AFFIRMED for the reasons set forth herein.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1199)
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
64 Fed. Reg. 37,644, 37,659 (1999) (to be codified and hereinafter
referred to as 29 C.F.R. � 1614.405). All requests and arguments must be
submitted to the Director, Office of Federal Operations, Equal Employment
Opportunity Commission, P.O. Box 19848, Washington, D.C. 20036. 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 64 Fed. Reg. 37,644, 37,661 (1999)
(to be codified and hereinafter referred to as 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 (S1199)
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 (Z1199)
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 that the Court appoint
an attorney to represent you and that the Court 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 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:
January 12, 2000
____________________________
Date Carlton M. Hadden, Acting Director
Office of Federal Operations
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days of mailing. I certify that
the decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
_______________ __________________________
Date Equal Employment Assistant1On November 9, 1999, revised
regulations governing the EEOC's federal sector complaint process
went into effect. These regulations apply to all federal sector
EEO complaints pending at any stage in the administrative process.
Consequently, the Commission will apply the revised regulations found
at 64 Fed. Reg. 37,644 (1999), where applicable, in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at WWW.EEOC.GOV.