01992011
10-05-1999
Charles A. Pinson, Jr., Appellant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Charles A. Pinson, Jr. v. Department of the Army
01992011
October 5, 1999
Charles A. Pinson, Jr., )
Appellant, )
) Appeal No. 01992011
v. ) Agency No. 09612G0630
)
Louis Caldera, )
Secretary, )
Department of the Army, )
Agency. )
)
DECISION
INTRODUCTION
Appellant filed an appeal with this Commission from a final agency
decision (FAD) concerning his complaint of unlawful employment
discrimination in violation of Title VII of the Civil Rights Act of 1964,
as amended, 42 U.S.C. �2000e et seq. The appeal is accepted in accordance
with EEOC Order No. 960.001, as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed appellant's
complaint for raising the matter in an appeal to the Merit Systems
Protection Board (MSPB) and for stating the same claim that is pending
before or has been decided by the agency or the Commission.
BACKGROUND
Appellant filed a formal complaint on April 4, 1998, alleging
discrimination on the bases of race (Caucasian), sex (male), reprisal,
and marital status when:
On April 3, 1998, appellant was terminated by the agency.
On September 3, 1998, MSPB Administrative Judge-1 and Administrative
Judge-2 conspired to unlawfully adjudicate his Constitutional and Civil
Rights by remanding his case.
On December 9, 1997, the agency conspired to deny appellant employment
opportunity when appellant was denied security clearance.
On December 10, 1997, an unlawful criminal investigation was conducted on
appellant which was used in the termination of appellant's employment.
On July 29, 1998, MSPB Administrative Judge-1 did not follow Supreme
Court rulings and stare decisis in her decision regarding appellant's
termination.
On June 1, 1998, MSPB Administrative Judge-2 reaffirmed Administrative
Judge-1's initial decision and would not readjudicate his sixty (60)
day suspension which ultimately lead to his termination.
On April 21, 1997, appellant was suspended for sixty (60) days in
retaliation for prior EEO activity.
On December 23, 1996, the EEO Office assigned an "uncleared" foreign
national, against appellant's specific request, to investigate appellant's
case regarding the removal of his security clearance.
On January 8, 1997, appellant was not selected for the position of
Computer/Electronics Engineer (GS-854/855-13).
On or about the year 1992, appellant's Section Chief asked appellant to
marry a Filipino woman who is the same race as the Chief's wife which
appellant believed to be a part of a "master race" plan created by the
Chief.
In September 1994, appellant was suspended for six (6) days because
appellant complained about a lack of support and the fact that his
supervisors were neglecting U.S. and International law in a combat zone.
On December 18, 1991, appellant was only given a "highly successful"
rating instead of "exceptional" which appellant felt he deserved.
On November 19, 1992, appellant was only given a "highly successful"
rating even though he felt that he should have received an "exceptional"
rating.
On November 18, 1993, appellant was only given a "highly successful"
rating instead of "exceptional" which appellant felt he deserved.
On March 3, 1996, appellant was denied a promotion to Computer/Electronics
Engineer (GS-0854/0855-13).
Appellant's Chief retaliated against him because appellant refused to
marry an Oriental woman.
On July 12, 1995, appellant was denied the opportunity to be the Technical
Point of Contact by his supervisor.
On November 1, 1994, January 13, 1995, and November 9, 1995, appellant
was denied an opportunity to work on the STAR-T project that appellant
had conceptualized and invented.
On or about December 1996, appellant and his organization at that time
were "written out" of the STAR-T contract by the project leader and
manager.
On January 31, 1996, an email was sent out indicating that the Secretary
of Defense of the Armed Forces of the United States was awarding the
Kuwait Liberation Medal (KLM) for those who participated in Operation
Desert Shield and Desert Storm between August 2, 1990 and August 31,
1993. Appellant qualified for this medal and submitted his Desert Storm
Temporary Duty Orders for processing. Appellant has yet to receive the
KLM nor has he received information as to why he has not received it
In its FAD, the agency dismissed appellant's complaint. The agency
dismissed allegations (A)-(H) in accordance with 29 C.F.R. �1614.107(d)
finding that appellant has raised the issue of his termination in an
appeal to the MSPB (Docket Number: DE-0752-98-0289-I-1). Allegations
(J), (K), (O)-(T) were dismissed pursuant to 29 C.F.R. �1614.107(a).
The agency found that appellant raised these issues in a formal complaint
of discrimination which was filed on October 2, 1996 and dismissed by
the agency in a FAD dated May 9, 1997. Finally, the agency dismissed
allegations (I) and (L)-(N) in accordance with 29 C.F.R. �1614.107(b)
finding that appellant did not raise these issues with an EEO Counselor.
This appeal followed.
ANALYSIS AND FINDINGS
Allegations (A)-(G)
A mixed case complaint is a complaint of employment discrimination filed
with a federal agency, related to or stemming from an action that can be
appealed to the MSPB. 29 C.F.R. �1614.302(a)(1). An aggrieved person may
initially file a mixed case complaint with an agency or may file a mixed
case appeal directly with the MSPB, pursuant to 5 C.F.R. �1201.151, but
not both. 29 C.F.R. �1614.302(b). EEOC Regulation 29 C.F.R. �1614.107(d)
provides that an agency shall dismiss a complaint or a portion of a
complaint where the complainant has raised the matter in an appeal to
the MSPB.
On April 30, 1998, appellant raised allegations pertaining to his removal
and the circumstances surrounding it in his appeal to MSPB of the agency's
action. On July 29, 1998, the MSPB issued appellant a decision which
affirmed the agency's removal of appellant. Administrative Judge-1
noted appellant's allegation of discrimination by the agency in its
termination of appellant based on the removal of his security clearance.
Administrative Judge-1 also found that MSPB had no jurisdiction to review
appellant's claim of discrimination made in connection with security
clearance decisions. After noting that the security clearance issue was
so intertwined with appellant's termination, Administrative Judge-1 found
that the appellant was properly terminated for his failure to maintain the
required security clearance and that the agency provided appellant with
adequate due process in both the revocation and removal proceedings.
At that time, appellant was notified of his right to have the MSPB
decision reviewed by the Board or the Court of Appeals. The record
indicates that appellant did not take such an action.
The Commission has the authority to determine whether the grant, denial,
or revocation of a security clearance was conducted in a discriminatory
manner in only limited circumstances. See Schroder v. Department of
Defense, EEOC Request No. 05930248 (April 14, 1994); see also Policy
Guidance on the use of the national security Exception contained in
703(g) of Title VII of the Civil Rights Act of 1964, as amended, EEOC
Notice N-915-041 (November 2, 1989). We are precluded from reviewing
the substance of a security clearance determination. See Department of
the Navy v. Egan, 484 U.S. 518 (1988); see also Lyons v. Department of
the Navy, EEOC Request No. 05890839 (March 22, 1990). Appellant raises
allegations (C) and (D) in his complaint. These allegations pertain to
the removal of appellant's security clearance. We find that appellant
has raised allegations of discrimination over which the Commission has
no jurisdiction. Therefore, the Commission finds that issues (C) and
(D) were properly dismissed by the agency.
As to allegation (A), appellant alleges discrimination when on April 3,
1998, he was terminated by the agency. Appellant raised this termination
in an appeal to the MSPB. The MSPB issued appellant a decision on
July 29, 1998, which affirmed the agency's removal of appellant.
Upon review of the record, we find that the MSPB did not address
appellant's allegation of discrimination. Therefore, in this particular
case, we find that the portion of appellant's complaint solely regarding
his termination was not addressed by the MSPB and the agency improperly
dismissed this allegation pursuant to 29 C.F.R. �1614.107(d).
As to allegation (G), appellant also raised allegations of discrimination
pertaining to his sixty (60) day suspension in his appeal to
MSPB of the agency's action (Docket Number DE-0752-97-0509-I-1 and
DE-0752-97-0509-S-1). On September 3, 1997, MSPB issued its initial
decision which dismissed his allegation finding that appellant and the
agency agreed to settle the appeal. Appellant raised this allegation for
a second time in his appeal to MSPB regarding his termination (Docket
Number DE-0752-98-0289-I-1). Therefore, the Commission finds that the
agency's FAD was proper when it dismissed allegation (G) pursuant to 29
C.F.R. �1614.107(d).
We find that allegations (B), (E), and (F) constitute a collateral
attack on the MSPB determinations. A collateral attack involves
a challenge to another forum's proceeding. Lau v. National Credit
Union Administration, EEOC Request No. 05950037 (March 18, 1996).
The Commission will not review allegations related to how an employee's
case was ultimately decided. See Bowie v. United States Postal Service,
EEOC Request No. 05910802 (February 4, 1992). Appellant's complaint
did not center on discrimination within the MSPB process. Instead,
as the record indicates, appellant merely alleged dissatisfaction with
the outcome of the MSPB process. Such allegations against the MSPB
decisions constitute a collateral attack and, therefore, the Commission
finds that allegations (B), (E), and (F) should be dismissed.
Allegation (H)
Allegation (H) fails to state a claim. Appellant filed a prior
EEO complaint regarding the removal of his security clearance.
He specifically requested that the EEO Office assign an investigator who
spoke and understood English. Appellant alleges discrimination when
the EEO office ignored his request and assigned a foreign national to
investigate his claim. The Commission finds that this allegation refers
to the process by which his EEO complaint was handled. Complaints
regarding the EEO complaint process are considered spin-off issues
that cannot stand alone as a separate complaint. This issue is to be
directed to the appropriate agency official responsible for the quality of
complaints processing. See EEOC Management Directive 110 (EEO MD-110),
p. 4-8 (October 22, 1992). EEOC Regulation 29 C.F.R. �1614.107(a)
provides, in relevant part, that an agency shall dismiss a complaint,
or portion thereof, that fails to state a claim. Therefore, we find
that allegation (H) is dismissed for failure to state a claim.
Allegation (I)
EEOC Regulation 29 C.F.R. �1614.107(b) states, in pertinent part, that
an agency shall dismiss a complaint or portion thereof which raises a
matter that has not been brought to the attention of an EEO Counselor,
and is not like or related to a matter on which the complainant has
received counseling. A later allegation or complaint is "like or related"
to the original complaint if the later allegation or complaint adds
to or clarifies the original complaint and could have reasonably been
expected to grow out of the original complaint during the investigation.
See Scher v. United States Postal Service, EEOC Request No. 05940702
(May 30, 1995).
Appellant noted on his formal complaint that he did not seek an EEO
Counselor prior to filing this complaint. Upon careful review, we find
that issue (I) was not addressed in any prior EEO complaint nor any EEO
Counselor's report dealing with the prior EEO complaint filed on October
20, 1996. Therefore, we find that this issue has not been raised to an
EEO Counselor. We note that even if the date appellant filed his formal
complaint is used as his date of EEO Counselor contact (April 4, 1998),
it would appear that allegation (I) is untimely as it occurred on July
8, 1997. As such, we find that allegation (I) was properly dismissed.
Allegations (J)-(T)
EEOC Regulation 29 C.F.R. �1614.107(a) provides that the agency shall
dismiss a complaint or a portion of a complaint that states the same claim
that is pending before or has been decided by the agency or Commission.
Appellant filed an EEO complaint on October 2, 1996 with the agency.
In that complaint, appellant included allegations of discrimination on
the bases of race (White), color (White), sex (male), and marital status
when:
Appellant did not adhere to management's master race concept that he
was selected to implement.
Appellant refused to marry a Filipino woman.
Appellant received a six (6) day suspension in September 1994.
Appellant was not give a fair rating when he received "Highly Successful"
when he felt he deserved "Exceptional" on December 18, 1991, November 19,
1992, and November 18, 1993.
Appellant was denied a promotion to Computer/Electronics Engineer
(GS-0854/0855-13) on March 3, 1996.
Appellant was denied the opportunity to be the Technical Point of Contact
on July 12, 1995, by appellant's supervisor.
Appellant was denied the opportunity to work on the STAR-T project.
Appellant and his organization were "written out" of the STAR-T statement
of work contract.
Appellant did not receive his KLM for participating in Operation Desert
Shield and Desert Storm.
These allegations of discrimination also appear in the appeal at hand
in allegations (J)-(T). The agency dismissed appellant's complaint
in its final decision in August 1997. The FAD provided appellant with
appeal rights. The evidence shows that appellant did not file any appeal
with the Commission. We find that the agency properly dismissed these
allegations pursuant to 29 C.F.R. �1614.107(a).
Allegations of Discrimination on the Basis of Marital Status
We note that one of the bases of discrimination indicated by appellant
was marital status. The Commission's regulations require that an agency
accept a complaint or allegation from any aggrieved employee or applicant
for employment who believes that he or she has been discriminated against
by that agency because of their race, color, religion, sex, national
origin, age or disabling condition. 29 C.F.R.�1614.103; �1614.106(a).
EEOC Regulation 29 C.F.R. �1614.107(a) provides that an agency shall
dismiss an allegation that fails to state a claim under �1614.103.
We find that appellant fails to state a claim with respect to his
contention that he was discriminated against because of his marital
status. This basis is not covered under our regulations and is not
addressed in this decision.
CONCLUSION
Accordingly, the decision of the agency is AFFIRMED regarding allegations
(B)-(T) and REVERSED regarding allegation (A) and REMANDED in accordance
with this decision and the proper regulations.
ORDER (E1092)
The agency is ORDERED to process the remanded allegations in accordance
with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant
that it has received the remanded allegations within thirty (30) calendar
days of the date this decision becomes final. The agency shall issue to
appellant a copy of the investigative file and also shall notify appellant
of the appropriate rights within one hundred fifty (150) calendar days
of the date this decision becomes final, unless the matter is otherwise
resolved prior to that time. If the appellant requests a final decision
without a hearing, the agency shall issue a final decision within sixty
(60) days of receipt of appellant's request.
A copy of the agency's letter of acknowledgment to appellant and a copy
of the notice that transmits the investigative file and notice of rights
must be sent to the Compliance Officer as referenced below.
IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)
Compliance with the Commission's corrective action is mandatory.
The agency shall submit its compliance report within thirty (30)
calendar days of the completion of all ordered corrective action. The
report shall be submitted to the Compliance Officer, Office of Federal
Operations, Equal Employment Opportunity Commission, P.O. Box 19848,
Washington, D.C. 20036. The agency's report must contain supporting
documentation, and the agency must send a copy of all submissions to
the appellant. If the agency does not comply with the Commission's
order, the appellant may petition the Commission for enforcement of
the order. 29 C.F.R. �1614.503 (a). The appellant also has the right
to file a civil action to enforce compliance with the Commission's
order prior to or following an administrative petition for enforcement.
See 29 C.F.R. ��1614.408, 1614.409, and 1614.503 (g). Alternatively,
the appellant has the right to file a civil action on the underlying
complaint in accordance with the paragraph below entitled "Right to File
A Civil Action." 29 C.F.R. ��1614.408 and 1614.409. A civil action for
enforcement or a civil action on the underlying complaint is subject to
the deadline stated in 42 U.S.C. �2000e-16(c) (Supp. V 1993). If the
appellant files a civil action, the administrative processing of the
complaint, including any petition for enforcement, will be terminated.
See 29 C.F.R. �1614.410.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. � 1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (T0993)
This decision affirms the agency's final decision in part, but it also
requires the agency to continue its administrative processing of a
portion of your complaint. You have the right to file a civil action
in an appropriate United States District Court on both that portion of
your complaint which the Commission has affirmed AND that portion of the
complaint which has been remanded for continued administrative processing.
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. In the alternative, you may file a
civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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 (Z1092)
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:
Oct. 5, 1999
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations