01a53473
09-15-2005
Andrew R. Inman, Complainant, v. Mike Johanns, Secretary, Department of Agriculture, Agency.
Andrew R. Inman v. U.S. Department of Agriculture
01A53473
September 15, 2005
.
Andrew R. Inman,
Complainant,
v.
Mike Johanns,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 01A53473
Agency No. 030673
Hearing No. 310-2005-00017X
DECISION
Upon review, the Commission finds that complainant's complaint was
properly dismissed for lack of jurisdiction. A claim that lacks
jurisdiction fails to state a claim. 29 C.F.R. � 1614.107(a)(1).
The complainant claimed that he was discriminated against when he was
subjected to civil rights investigations brought against him under Title
VI of the Civil Rights Act of 1964, which provides that no person in the
United States shall be discriminatorily excluded from participation in,
be denied the benefits of, or be subjected to discrimination under any
program or activity receiving Federal financial assistance. He also
claimed that he was discriminated against in reprisal for complaining
to the agency's Office of Inspector General (OIG) about the conduct of
the investigator in a Title VI case. He averred that this resulted in
a misconduct investigation against him by the agency.
Following an investigation of the complainant's EEO complaint, an
Equal Employment Opportunity Commission (EEOC) Administrative Judge
(AJ) issued a decision without a hearing dismissing it for lack of
jurisdiction. The AJ found that the complainant's claim was based on
reprisal for complaining about investigations to management officials,
and this did not constitute protected EEO activity under civil rights
statutes enforced by the EEOC.
The complainant directly appealed the AJ's decision to the EEOC.
Thereafter, the agency issued a final order implementing the AJ's
decision. The complainant timely appealed the final order.
The complainant's appeal from the AJ's decision was prematurely filed.
However, he perfected his appeal by timely appealing the agency's
final action. On appeal, the complainant does not contest the AJ's
characterization of his claim as being based on reprisal.
The AJ correctly dismissed the complainant's claim for lack of
jurisdiction. Also, the complainant's complaint fails to state a
claim for a second reason. 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).
The proper forum for complainant to have raised his challenges to actions
which occurred during the investigations was during the investigations
themselves. It is inappropriate to now attempt to use the EEO process
to collaterally attack actions which occurred during the investigatory
process.
Accordingly, the agency's final action dismissing complainant's complaint
is affirmed.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0701)
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 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 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 (S0900)
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:
______________________________
Carlton M. Hadden, Director
Office of Federal Operations
September 15, 2005
__________________
Date