0120181457
08-24-2018
Verdie A,1 Complainant, v. Jeff T. H. Pon, Director, Office of Personnel Management (OPM)), Agency.
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
Verdie A,1
Complainant,
v.
Jeff T. H. Pon,
Director,
Office of Personnel Management (OPM)),
Agency.
Appeal No. 0120181457
Agency No. 2018016
DECISION
On March 28, 2018, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from the Agency's decision dated March 12, 2018, dismissing her complaint of unlawful employment discrimination in violation of an unidentified statute.
BACKGROUND
At the time of events giving rise to this complaint, Complainant was dissatisfied with the Agency's service on her disability retirement application. She was a retired Tax Analyst, GS-9, with the Internal Revenue Service (IRS).
On January 26, 2018, Complainant filed an equal employment opportunity (EEO) complaint alleging that OPM retaliated against her under an unidentified statute when it improperly handled her disability retirement application she filed around October 2016, i.e., delayed processing; customer service representatives, management, and her case worker being variously rude in the form of screaming matches, being dismissive, making inconsistent statements; and when her disability retirement application was denied by OPM by letter dated June 1, 2017.2
The Agency dismissed the complaint for failure to timely initiate EEO counseling. It reasoned that Complainant did not initiate EEO counseling until January 8, 2018, far beyond the 45- calendar day time limit. The Agency also dismissed the complaint for failure to state a claim. It reasoned that the EEO complaint was an impermissible collateral attack OPM's disability retirement process.
We agree with the Agency that Complainant's complaint is an impermissible collateral attack on another proceeding - OPM's disability retirement process. Jesse R. v. OPM, EEOC Appeal No. 0120170455 (Mar. 30, 2017) (the complainant, an employee of the United States Postal Service, filed an EEO complaint alleging discrimination when OPM mishandled and failed to timely process his disability retirement application, denied his disability retirement benefit, and did not assign anyone to process his request for reconsideration. The complaint failed to state a claim because it was a collateral attack on another proceeding - the OPM disability retirement process).3
Accordingly, the FAD is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0617)
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. A party shall have twenty (20) calendar days of receipt of another party's timely request for reconsideration in 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). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission. Complainant's request may be submitted via regular mail to P.O. Box 77960, Washington, DC 20013, or by certified mail to 131 M Street, NE, Washington, DC 20507. 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 agency's request must be submitted in digital format via the EEOC's Federal Sector EEO Portal (FedSEP). See 29 C.F.R. � 1614.403(g). 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 (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
August 24, 2018
__________________
Date
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.
2 The Agency's definition of the complaint only captured the June 1, 2017 denial. The definition above better captures the complaint. After OPM denied her disability retirement application, Complainant filed a request for reconsideration, which resulted in OPM approving her disability retirement application by letter dated August 7, 2017.
3 Since we find that Complainant's complaint fails to state a claim, we don't need to address whether she timely initiated EEO counseling.
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