Complainant,v.Shaun Donovan, Secretary, Department of Housing and Urban Development, Agency.

Equal Employment Opportunity CommissionApr 11, 2014
0120140432 (E.E.O.C. Apr. 11, 2014)

0120140432

04-11-2014

Complainant, v. Shaun Donovan, Secretary, Department of Housing and Urban Development, Agency.


Complainant,

v.

Shaun Donovan,

Secretary,

Department of Housing and Urban Development,

Agency.

Appeal No. 0120140432

Agency No. HUD000672013

DECISION

On November 13, 2013, Complainant filed a timely appeal with the Equal Employment Opportunity Commission (EEOC or Commission) from a final Agency decision (FAD) dated October 24, 2013, finding no discrimination with regard to his complaint of unlawful employment discrimination in violation of the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq. The appeal is accepted pursuant to 29 C.F.R. � 1614.405(a).

BACKGROUND

At the time of events giving rise to this complaint, Complainant was a retiree from the position of Director, Idaho State Field Office in Boise. He retired in March 2010.

Complainant filed a formal complaint on May 13, 2013, alleging that the Agency discriminated against him based on reprisal for prior protected equal employment opportunity (EEO) activity under the ADEA when:

The U.S. Department of Justice (DOJ) did not have authority to represent the Secretary of the Agency in the civil action he filed in federal district court on June 21, 2010, Agency officials concealed this fraud, and this resulted in him losing his civil action.

Complainant's complaint is against the Agency's Secretary in his official capacity and individually, and against other Agency officials individually. The Agency dismissed the complaint for failure to state a claim under 29 C.F.R. �1614.107(a)(1), reasoning Complainant lodged a collateral attack on the federal court process.

Complainant filed his civil action in the United States District Court for the Southern District of Georgia, civil action number 2:10-cv-00097, on June 21, 2010, alleging that the Agency violated the ADEA when it did not grant his request to transfer east of the Mississippi River in an effort to force him to retire, which he did in March 2010. Complainant sued the Secretary of the Agency, both in his official capacity and as an individual.

In March 2011 the District Court found against Complainant. It dismissed his claims against the Secretary of the Agency in his individual capacity without prejudice, finding the Secretary was improperly served. It dismissed the civil action against the Agency both on procedural grounds and on the merits. Specifically, the Court found that prior to filing his civil action alleging a violation of the ADEA Complainant did not provide the EEOC with a notice of intent to file a civil action, as required by 29 U.S.C. � 633(a)(d). It also granted the Agency's motion for summary judgment, finding that Complainant did not allege a prima facie case of age discrimination.

Thereafter, Complainant filed various motions with the Court seeking to have his civil action restored. In December 2011 the District Court ruled against Complainant on all his motions. Of particular interest, the District Court ruled the Department of Justice Assistant United States Attorney had the legal authority to represent the Agency in the civil action. On February 21, 2013, the Eleventh Circuit denied Complainant's writ of mandamus which included a request to disqualify the Agency's counsel.

Thereafter, Complainant filed his administrative complaint.

ANALYSIS AND FINDINGS

The proper forum for Complainant to have raised his challenges to actions which occurred during the civil court proceeding was at that proceeding itself, which he did. Only when his claim failed did he initiate this proceeding with the EEOC. It is inappropriate to now attempt to use the EEO administrative process to collaterally attack actions which occurred in civil court. Henry v. United States Postal Service, EEOC Appeal No. Appeal No. 0199972956 (Dec. 11, 1998) (Commission held that allegation that agency officials provided false, misleading, and perjured testimony in a civil action in which he was a party does not state a separate and independent claim of employment discrimination and is a collateral attack on civil court proceedings).

The EEOC finds that Complainant's complaint was 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); Kleinman v. United States Postal Service, EEOC Request No. 05940585 (Sep. 22, 1994).

With respect to Complainant's claim against the Agency Secretary and other Agency officials individually, we also find that Complainant has failed to state a claim. EEOC Regulations only permit the filing of administrative complaints against the federal government as an employer, not individuals. 29 C.F.R. � 1614.103.

Complainant also contended that the Agency did not properly process his complaint. Upon review of the record we find that Agency did not take any actions which prejudiced Complainant's case.

CONCLUSION

The FAD is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0610)

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), at 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 77960, Washington, DC 20013. 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 (S0610)

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 (Z0610)

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 from the Court that the Court appoint an attorney to represent you and that the Court also 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 with the Court 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

April 11, 2014

__________________

Date

2

01-2014-0432

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

Office of Federal Operations

P.O. Box 77960

Washington, DC 20013

2

0120140432