01a51312
07-22-2005
Jawiba Keisu, Complainant, v. Anthony J. Principi, Secretary, Department of Veterans Affairs, Agency.
Jawiba Keisu v. Department of Veterans Affairs
01A51312
July 22, 2005
.
Jawiba Keisu,
Complainant,
v.
Anthony J. Principi,
Secretary,
Department of Veterans Affairs,
Agency.
Appeal No. 01A51312
Agency No. 200N-0691-2004103579
DECISION
Complainant filed a timely appeal with this Commission from the agency's
decision dated October 18, 2004, 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. and the Age
Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. �
621 et seq. In his complaint, complainant alleged that he was subjected
to discrimination on the bases of race (African-American), sex (male), age
(2/26/1943), and reprisal for prior EEO activity when on June 14, 2004,
his Office of Personnel Management (OPM) Retirement Pay was delayed due to
missing documentation. Complainant believes his supervisor orchestrated
the removal of these documents from the former's Retirement Folder.
The agency dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a)(1)
for failure to state a claim. Specifically, the agency determined that
complainant had failed to show that he had suffered harm with respect
to the terms, conditions, or privileges of his employment. Further,
on appeal the agency found that complainant's allegations relating to
the effect of the agency's conduct on a federal compensatory program
constituted an inappropriate collateral attack, and should thus be
disregarded. On appeal, complainant does not advance any unfamiliar
arguments.
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. Department of the Air Force,
EEOC Request No. 05931049 (April 21, 1994).
Complaints that essentially amount to collateral attacks are not
cognizable claims for EEOC purposes. 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 (September 22, 1994); Lingad v. United States
Postal Service, EEOC Request No. 05930106 (June 25, 1993).
In the instant case, complainant has failed to state a claim, hence,
dismissal was the proper outcome as a matter of law. The facts before us
are simple: complainant's retirement folder was allegedly incomplete; the
missing documentation, which had supposedly been filed by complainant,
led to a delay in his OPM retirement payments; complainant accuses
the agency of removing the documents in retaliation for prior EEO
activity. Evidently, the crux of complainant's dilemma is the effect the
agency's disputed deeds had on the timeliness of his annuity payments.
The Commission has previously held that a claim related to the untimely
processing of paperwork does not state a claim. See Schneider v. United
States Postal Service, EEOC Request No. 05A01065 (August 15, 2002)
(holding that a claim related to the untimely processing of workers'
compensation papers does not state a claim) (citing Johnston v. Henderson,
144 F.Supp.2d 1341 (S.D.F.L. 2001), aff'd without decision, 277 F.3d 1380
(11th Cir. 2001) (allegations regarding the processing of paperwork not
independently actionable)). Here, it is plainly the case that complainant
is attempting to circumvent the administrative procedures set in place
and by a pertinent agency's schema. We do not have jurisdiction over
attempted collateral assaults born out of complainant's dissatisfaction
with bureaucratic aftermaths. Therefore, we find the agency properly
dismissed the complaint, pursuant to 29 C.F.R. � 1614.107(a)(1), for
failure to state a claim.
Accordingly, the agency's decision to dismiss the complaint is AFFIRMED.
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
July 22, 2005
__________________
Date