0520080814
01-12-2009
Isaac A. Williams, Complainant, v. Michael B. Mukasey, Attorney General, Department of Justice, Agency.
Isaac A. Williams,
Complainant,
v.
Michael B. Mukasey,
Attorney General,
Department of Justice,
Agency.
Request No. 0520080814
Appeal No. 0120082639
Agency No. P20080161
DENIAL
Complainant timely requested reconsideration of the decision in Isaac
A. Williams v. Department of Justice (Federal Prisons), EEOC Appeal
No. 0120082639 (August 7, 2008). EEOC regulations provide that the
Commission may, in its discretion, grant a request to reconsider any
previous Commission decision where the requesting party demonstrates 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. See 29 C.F.R. � 1614.405(b).
At the time of the events at issue, complainant was employed as
a Recreation Specialist, GS-9, at the Federal Bureau of Prison's
correctional institution in El Reno, Oklahoma. In January 2008,
complainant filed an EEO complaint against the agency in which he
alleged that he was subjected to discrimination on the basis of race
(African American)1 when: (1) in September 2007, he was the subject
of an investigation by the agency's Office of Inspector General (OIG);
and (2) when he was subjected to harassment in the form of comments as
a result of the investigation. By final decision dated May 2, 2008, the
agency dismissed the complaint, pursuant to 29 C.F.R. � 1614.107(a)(1),
for failure to state a claim. Complainant appealed the dismissal to this
Commission. In a decision dated August 7, 2008, the Commission affirmed
the agency's dismissal. EEOC Appeal No. 0120082639. Complainant then
filed the instant request for reconsideration.
In his statement appended to his EEO complaint, complainant alleged
that on September 13, 2007, he was subjected to an interrogation for
approximately 45 minutes as part of an OIG investigation into alleged
misconduct in the recreation department involving the improper mailing
of inmate mail. Complainant alleged that only he and another African
American staff member were questioned. He alleged that the OIG agent who
questioned him was intimidating, berating, accused him of being guilty
and produced questionable evidence. Complainant stated he thought
all the recreation staff should have been questioned, but were not.
Complainant was eventually cleared, and no charges were filed against
him or other disciplinary action initiated.
With regard to his harassment claim, complainant stated in his
complaint that some of his coworkers made comments to him following the
investigation. As examples, complainant alleged that one coworker said,
"I like you Williams, but I cannot be seen talking to you," and another
coworker joked, "Hey Williams, is the recreation department going to a
striped uniform?" Complainant asserted that these comments made him
feel like his coworkers would not back him up properly in encounters
with inmates, putting his safety at risk.
In EEOC Appeal No. 0120082639, the Commission noted the long-standing
principle 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 (September 22, 1994);
Lingad v. United States Postal Service, EEOC Request No. 05930106
(June 25, 1993). The previous decision found that the proper forum
for complainant to have raised his challenges to actions related to a
potential criminal proceeding, of which an office of Inspector General
(IG) investigation is a part, is generally within that proceeding
itself. Hence, we affirmed the dismissal of complainant's claim of
discrimination as a collateral attack on the OIG investigatory process. On
reconsideration, we find no reason to change this decision. A thorough
examination of the complaint and related EEO counseling report, as well as
the statement submitted in the original appeal, reveals that complainant
was directly challenging the way in which the OIG investigation was
conducted-how he was chosen as a target for interrogation and the manner
in which the interrogation was conducted. His claim, therefore, is a
direct collateral attack on the OIG investigatory process and, under
the facts of this case, appropriately dismissed.
With regard to complainant's second claim concerning comments made to him
by coworkers and others concerning the investigation, in its previous
decision the Commission found that dismissal was appropriate because
complainant failed to allege sufficient facts that would, if proven true,
show that he suffered harm or loss with respect to a term, condition,
or privilege of employment for which there is a remedy. See Diaz
v. Department of the Air Force, EEOC Request No. 05931049 (April 21,
1994). Again, on reconsideration, we affirm our previous decision on
this point. To the extent complainant is claiming a discriminatory
hostile work environment, we find that the events described in the
record presented to the Commission in the original appeal, even if
proven to be true, would not indicate that complainant was subjected
to harassment that was sufficiently severe or pervasive to alter the
conditions of his employment. See Cobb v. Department of the Treasury,
Request No. 05970077 (March 13, 1997). 2
After reconsidering the previous decision and the entire record, the
Commission finds that the request fails to meet the criteria of 29
C.F.R. � 1614.405(b), and it is the decision of the Commission to deny
the request. The decision in EEOC Appeal No. 0120082639 remains the
Commission's final decision. There is no further right of administrative
appeal on the decision of the Commission on this request.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0408)
This decision of the Commission is final, and there is no further right
of administrative appeal from the Commission's decision. 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.
RIGHT TO REQUEST COUNSEL (Z1008)
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
January 12, 2009
__________________
Date
1 In his brief in support of his request for reconsideration, complainant
indicates that his complaint also contained an allegation of reprisal.
However, an examination of the complaint and the entire record submitted
during his original appeal does not reveal he ever raised a reprisal
allegation in addition to his race discrimination claim.
2 In complainant's brief submitted on request for reconsideration, a
number of new incidents of alleged harassment are referred to that do
not appear in the record before the Commission in the original appeal.
Therefore, these matters were not, and could not, have been considered
when we issued our previous decision. There is no indication why
complainant did not raise these incidents earlier. If complainant
wishes to raise a claim of ongoing racial harassment, he should seek
EEO counseling within 45 days of an incident and assert these prior
incidents as part of an alleged pattern of harassment.
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0520080814
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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