01a02102
08-08-2000
Rodney L. Jones v. Department of Agriculture
01A02102
August 8, 2000
.
Rodney L. Jones,
Complainant,
v.
Daniel R. Glickman,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 01A02102
Agency No. 971181
Hearing No. 280-99-4360X
DECISION
The complainant timely filed an appeal with this Commission from the
agency's failure to issue a final agency action following its receipt
of a decision by an Administrative Judge on December 2, 1999.<1> The
Administrative Judge issued the decision pursuant to 64 Fed. Reg. 37,644,
37,656, 37,657 (1999) (to be codified and hereinafter referred to as EEOC
Regulation 29 C.F.R. � 1614.109(b)) and 64 Fed. Reg. 37,644, 37,656 (1999)
(to be codified and hereinafter referred to as EEOC Regulation 29 C.F.R. �
1614.107(a)(8)). In accordance with 64 Fed. Reg. 37,644, 37,656, 37,657
(1999) (to be codified and hereinafter referred to as EEOC Regulation 29
C.F.R. � 1614.109(i)), the decision of the Administrative Judge became
the final action of the agency when the agency failed to issue a final
order within 40 days of receipt of the Administrative Judge's decision.
The Commission accepts the complainant's appeal from the final action
of the agency pursuant to 64 Fed. Reg. 37,644, 37,659 (1999) (to be
codified at 29 C.F.R. � 1614.405).
The complainant alleged that the agency discriminated against him based
on his race (African-American) and color (black) when in April 1997,
the agency delayed in providing the complainant's union representative a
copy of the complainant's Official Personnel Folder which the complainant
requested for use in a civil action against the agency filed that the
complainant had filed in the United District Court for the Eastern
District of California.
After a review of the record in its entirety, including consideration
of all statements submitted on appeal, it is the decision of the
Equal Employment Opportunity Commission to AFFIRM the dismissal of the
complainant's August 26, 1997 complaint because the complaint does not
challenge an allegedly unlawful employment policy or practice. See Cobb
v. Department of the Treasury, Request No. 05970077 (March 13, 1997).
Moreover, as indicated by the Administrative Judge, to the extent that
the complaint involves an attempt to change the result of the court
proceeding, the complaint is an impermissible collateral attack on the
federal court proceeding.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0300)
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); 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 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).
COMPLAINANTS' RIGHT TO FILE A CIVIL ACTION (S0400)
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
August 8, 2000
__________________
Date
1On 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.