01A32833_r
08-05-2003
Brian S. Zahn, Complainant, v. R.L. Brownlee, Acting Secretary, Department of the Army, Agency.
Brian S. Zahn v. Department of the Army
01A32833
August 5, 2003
.
Brian S. Zahn,
Complainant,
v.
R.L. Brownlee,
Acting Secretary,
Department of the Army,
Agency.
Appeal No. 01A32833
Agency No. AVHFO0105B0040
Hearing No. 380-A2-X8057
DECISION
Complainant filed a timely appeal with this Commission from the
agency's decision dated March 31, 2003, dismissing his complaint of
unlawful employment discrimination in violation of Section 501 of the
Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. �
791 et seq. In his complaint, complainant alleged that he was subjected
to discrimination on the bases of disability and reprisal for prior EEO
activity when:
On April 6, 2001, complainant received an arbitrator's decision and award,
denying his grievance which was influenced by a supervisor's false or
misleading testimony given during the arbitration hearing.
At the arbitration hearing on February 6, 2001, additional agency
officials were involved in the misrepresentation of evidence, false
testimony, character assassination, deliberate withholding of evidence
and information, failed to properly perform their respective jobs and
failed to uphold the law.
In a final decision dated March 31, 2001, the agency fully implemented
the decision of the Administrative Judge (AJ) dated March 20, 2003,
which the AJ issued without a hearing. In her decision, the AJ found
the complaint failed to prove by a preponderance of the evidence that the
agency intentionally discriminated against him because of his disability
or in reprisal for protected EEO activity with regard to the issues
relating to the February 6, 2001 arbitration. The AJ also found that
the matter failed to state a claim of employment discrimination.
We find complainant's complaint is properly dismissed pursuant to 29
C.F.R. � 1614.107(a)(1) for failure to state a claim. 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). The proper forum
for complainant to have raised his challenges to actions which occurred
during the arbitration proceeding was at that proceeding itself. It is
inappropriate to now attempt to use the EEO process to collaterally
attack actions which occurred during the arbitration process.
We therefore AFFIRM the agency's final decision.
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
August 5, 2003
__________________
Date