01995786
11-30-2000
Jewel Ford, Complainant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Jewel Ford v. U.S. Department of the Army
01995786
November 30, 2000
.
Jewel Ford,
Complainant,
v.
Louis Caldera,
Secretary,
Department of the Army,
Agency.
Appeal No. 01995786
Agency No. BHEIFO-99-06-J-0350
DECISION
Complainant filed a timely appeal with this Commission from an agency's
decision dated June 14, 1999, dismissing her complaint of unlawful
employment discrimination brought under Title VII of the Civil Rights
Act of 1964, as amended, 42 U.S.C. � 2000e et seq.<1> In her complaint,
complainant claims that she was subjected to discrimination on the bases
of race and reprisal when during the course of her Merit System Protection
Board (MSPB) hearing, agency armed guards harassed and intimidated her,
her witnesses, and her attorney.
The agency dismissed the complaint on the grounds that it was now moot
because the military base where complainant and the guards had been
employed was now closed, precluding a reoccurrence.
On appeal, complainant argues that the MSPB case included a discrimination
claim, and that the agency improperly sent armed guards to the hearing as
an act of retaliation against complainant and her attorney for engaging
in protected activity.
Review of the record discloses a portion of the MSPB hearing transcript
in which complainant's attorney questions the MSPB administrative judge
about the presence of the agency's armed guards. The administrative
judge responds that the agency had requested the guards, and then refused
to answer any more questions. After the MSPB hearing, by letter dated
February 5, 1999, complainant's attorney complained to the MSPB's senior
administrative judge about the presence of the armed guards and their
actions. The MSPB's senior administrative judge responded in a letter
dated March 5, 1999, indicating that the matter had been investigated,
and that the MSPB administrative judge who conducted the hearing properly
exercised her discretion when she permitted the agency to have armed
guards at the hearing.
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).
Here, the issue regarding the presence of the armed guards arose during
the course of an MSPB hearing, and was then investigated by the MSPB in
response to a complaint filed with the MSPB's senior administrative
judge. The MSPB then determined that the administrative judge acted
properly in allowing the guards to be present during the hearing as
requested by the agency. It is inappropriate to now attempt to use the
EEO process to collaterally attack actions which occurred during the
MSPB process.
Therefore, we find that while the agency dismissed the instant complaint
on the grounds of mootness, the instant complaint is more properly
analyzed in terms of whether it states a claim. As discussed above, the
complaint constitutes an impermissible collateral attack on the MSPB
process and fails to state a claim. See 29 C.F.R. � 1614.107(a)(1).
Accordingly, the agency's final decision dismissing complainant's
complaint is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0900)
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
November 30, 2000
__________________
Date
CERTIFICATE OF MAILING
For timeliness purposes, the Commission will presume that this decision
was received within five (5) calendar days after it was mailed. I certify
that this decision was mailed to complainant, complainant's representative
(if applicable), and the agency on:
__________________
Date
______________________________
1On November 9, 1999, revised regulations governing the EEOC's federal
sector complaint process went into effect. These regulations apply
to all federal sector EEO complaints pending at any stage in the
administrative process. Consequently, the Commission will apply
the revised regulations found at 29 C.F.R. Part 1614 in deciding the
present appeal. The regulations, as amended, may also be found at the
Commission's website at www.eeoc.gov.