Jawiba Keisu, Complainant,v.Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.

Equal Employment Opportunity CommissionJul 22, 2005
01a51312 (E.E.O.C. Jul. 22, 2005)

01a51312

07-22-2005

Jawiba Keisu, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.


Jawiba Keisu v. Department of Veterans Affairs

01A51312

July 22, 2005

.

Jawiba Keisu,

Complainant,

v.

Anthony J. Principi,

Secretary,

Department of Veterans Affairs,

Agency.

Appeal No. 01A51312

Agency No. 200N-0691-2004103579

DECISION

Complainant filed a timely appeal with this Commission from the agency's

decision dated October 18, 2004, 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. and the Age

Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �

621 et seq. In his complaint, complainant alleged that he was subjected

to discrimination on the bases of race (African-American), sex (male), age

(2/26/1943), and reprisal for prior EEO activity when on June 14, 2004,

his Office of Personnel Management (OPM) Retirement Pay was delayed due to

missing documentation. Complainant believes his supervisor orchestrated

the removal of these documents from the former's Retirement Folder.

The agency dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a)(1)

for failure to state a claim. Specifically, the agency determined that

complainant had failed to show that he had suffered harm with respect

to the terms, conditions, or privileges of his employment. Further,

on appeal the agency found that complainant's allegations relating to

the effect of the agency's conduct on a federal compensatory program

constituted an inappropriate collateral attack, and should thus be

disregarded. On appeal, complainant does not advance any unfamiliar

arguments.

The regulation set forth at 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 Commission's federal sector case precedent has

long defined an �aggrieved employee� as one who suffers a present harm

or loss with respect to a term, condition, or privilege of employment

for which there is a remedy. Diaz v. Department of the Air Force,

EEOC Request No. 05931049 (April 21, 1994).

Complaints that essentially amount to collateral attacks are not

cognizable claims for EEOC purposes. 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).

In the instant case, complainant has failed to state a claim, hence,

dismissal was the proper outcome as a matter of law. The facts before us

are simple: complainant's retirement folder was allegedly incomplete; the

missing documentation, which had supposedly been filed by complainant,

led to a delay in his OPM retirement payments; complainant accuses

the agency of removing the documents in retaliation for prior EEO

activity. Evidently, the crux of complainant's dilemma is the effect the

agency's disputed deeds had on the timeliness of his annuity payments.

The Commission has previously held that a claim related to the untimely

processing of paperwork does not state a claim. See Schneider v. United

States Postal Service, EEOC Request No. 05A01065 (August 15, 2002)

(holding that a claim related to the untimely processing of workers'

compensation papers does not state a claim) (citing Johnston v. Henderson,

144 F.Supp.2d 1341 (S.D.F.L. 2001), aff'd without decision, 277 F.3d 1380

(11th Cir. 2001) (allegations regarding the processing of paperwork not

independently actionable)). Here, it is plainly the case that complainant

is attempting to circumvent the administrative procedures set in place

and by a pertinent agency's schema. We do not have jurisdiction over

attempted collateral assaults born out of complainant's dissatisfaction

with bureaucratic aftermaths. Therefore, we find the agency properly

dismissed the complaint, pursuant to 29 C.F.R. � 1614.107(a)(1), for

failure to state a claim.

Accordingly, the agency's decision to dismiss the 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

July 22, 2005

__________________

Date