0120122051
09-12-2012
Earl L. Ware, Complainant, v. John M. McHugh, Secretary, Department of the Army, Agency.
Earl L. Ware,
Complainant,
v.
John M. McHugh,
Secretary,
Department of the Army,
Agency.
Appeal No. 0120122051
Agency No. ARFTSAM11DEC05445
DECISION
Complainant filed a timely appeal with this Commission from the Agency's decision dated March 16, 2012, 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.
BACKGROUND
At the time of events giving rise to this complaint, Complainant worked as a Program Analyst at the Agency's Installation Management Command in Fort Sam Houston, Texas. Complainant contacted the Agency on December 12, 2011, to amend his prior EEO complaint regarding a Memorandum that he found placed on his desk sometime in mid-October 2011. The Agency determined that Complainant's new claim was not like or related to the prior EEO complaint. As such, Complainant was sent to an EEO Counselor to process the matter as a new compliant.
When the matter could not be resolved informally, Complainant was issued a Notice of Right to File a Formal Complaint. On January 24, 2012, Complainant filed a formal complaint alleging that the Agency subjected him to discrimination on the bases of race (African-American), color (Black), and reprisal for prior protected EEO activity under Title VII of the Civil Rights Act of 1964 when, by memorandum dated October 3, 2011, that the Inspector General's Office (IG Office) had received 15 allegations against Complainant and that they were investigating the matter. As background, Complainant stated that he had tried to get this matter included as an amendment to an existing complaint which was the subject of EEOC Appeal No. 0120111116 (Nov. 17, 2011).
The Agency found that Complainant raised two issues in his complaint, namely (1) the notice from the IG's Office and (2) the Agency's decision not to amend his prior EEO complaint. The Agency dismissed claim (1) pursuant to 29 C.F.R. � 1614.107(a)(2) for untimely EEO Counselor contact. The Agency noted that the IG Office issued the Memorandum on October 3, 2011, and that Complainant made contact with the EEO Counselor on December 12, 2011, beyond the 45 day time limit. The Agency then dismissed claim (2) pursuant to 29 C.F.R. � 1614.107(a)(8) for raising a compliant on the processing of his prior EEO complaint.
Complainant filed his appeal. On appeal, Complainant asserted that he did not find out about the Memorandum until mid-October. Therefore, Complainant argued that he raised claim (1) in a timely manner. Furthermore, Complainant stated that claim (1) was in fact related to the prior complaint. As such, his prior compliant should have been amended to include claim (1). The Agency requested that we affirm its decision to dismiss the compliant as a whole.
ANALYSIS AND FINDINGS
As for claim (1), we find it is more properly dismissed for failure to state a claim pursuant to 29 C.F.R. � 1614.107(a)(1). 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. Dep't of the Air Force, EEOC Request No. 05931049 (Apr. 21, 1994). The Commission has held that an employee cannot use the EEO complaint process to lodge a collateral attack on another proceeding. See Wills v. Dep't of Def., EEOC Request No. 05970596 (July 30, 1998); Kleinman v. U.S. Postal Serv., EEOC Request No. 05940585 (Sept. 22, 1994); Lingad v. U.S. Postal Serv., EEOC Request No. 05930106 (June 25, 1993). The proper forum for Complainant to have raised his challenges to actions which occurred during the IG investigation is with the IG Office. It is inappropriate to now attempt to use the EEO process to collaterally attack the IG investigation process. As such, we dismiss claim (1) albeit on different grounds.
On appeal, Complainant continued to argue that the Agency's EEO Office acted improperly when it failed to amend his prior EEO complaint. The regulation set forth at 29 C.F.R. � 1614.107(a)(8) provides, in relevant part, that an agency shall dismiss claims alleging dissatisfaction with the processing of a prior complaint. Dissatisfaction with the EEO process must be raised within the underlying complaint, not a new complaint. A complainant must raise any dissatisfaction with the processing of a complaint within the processing of that complaint. See EEOC - Management Directive 110 (as revised Nov. 9, 1999) 5-23, 5-25 to 5-26. As such, we find that claim (2) was properly dismissed by the Agency pursuant to 29 C.F.R. � 1614.107(a)(8).
CONCLUSION
Based on a thorough review of the record and the contentions on appeal, including those not specifically addressed herein, we AFFIRM the Agency's final decision dismissing the compliant.
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
September 12. 2012
__________________
Date
2
0120122051
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
2
0120122051