01A05256_r
08-06-2002
Leroy J. Holdmeyer, Complainant, v. Ann M. Veneman, Secretary, Department of Agriculture, Agency.
Leroy J. Holdmeyer v. U.S. Department of Agriculture
01A05256
August 6, 2002
.
Leroy J. Holdmeyer,
Complainant,
v.
Ann M. Veneman,
Secretary,
Department of Agriculture,
Agency.
Appeal No. 01A05256
Agency No. 990970
DECISION
Complainant filed a timely appeal with this Commission from an agency
decision pertaining to 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. The Commission accepts the appeal
in accordance with 29 C.F.R. � 1614.405.
On April 26, 1999, complainant contacted the EEO office regarding claims
of discrimination based on sex and race. Subsequently, on August 22,
1999, complainant filed a formal complaint.
The agency, in its decision, framed the claim as follows: complainant was
not selected for a position as a Supervisory Veterinary Medical Officer
GS-71-13 or Supervisory Food Technologist GS-1382-13 announcement number
FSIS-M-13 (98).
On May 19, 2000, the agency issued a decision dismissing the complaint for
untimely EEO Counselor contact. The agency determined that complainant's
April 26, 1999 EEO Counselor contact was beyond the forty-five-day time
limitation period with respect to the claim that the agency had identified
in its final decision.
On appeal, complainant asserts that the claim defined in the agency
decision was incomplete and inaccurate. Complainant contends that
contrary to the agency's findings, he raised four separate claims of
discrimination, all occurring within 45 days of his initial EEO contact.
The Commission determines that complainant's complaint is comprised
of four claims as identified on appeal. Nevertheless, the Commission
determines that the instant complaint was properly dismissed by the
agency for the reason set forth herein.
A fair reading of the complaint reveals that complainant claims that he
was discriminated against when:
In late March 1999, he was made aware that his grievances were initially
sustained, but later reversed by the deciding manager. Complainant
concluded that he was denied equal employment opportunity for the circuit
supervisory position.
During late March 1999 he was informed that his grievances alleging
waste of agency's resources, and promoting an unqualified person to the
Providence Circuit supervisory position, were denied.
On April 12, 1999, a manager requested him to ask during a meeting who
was retiring in the near future.
The agency elected to scheduled a female supervisor to provide coverage
to a circuit position which became vacant on March 3, 1999, while he
lacked meaningful assignments. Complainant believes that not scheduling
him to cover this vacancy was a misuse of agency resources. Complainant
indicated that he documented the misuse of government resources in his
March 7, 1999 grievance.
Although the agency dismissed complainant's complainant for failure to
contact an EEO Counselor in a timely manner, we find that complainant's
complaint is more properly analyzed pursuant to 29 C.F.R � 1614.107(a)(1),
regarding whether the four matters state a claim. Moreover, because
complainant's complaint is properly dismissed for failure to state a claim
we will not determine whether it was properly dismissed on other grounds.
Claims (1), (2) and (4)
The Commission has long 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).
Moreover, it is well-settled that, an EEO complaint which alleges that
discriminatory actions have been taken to influence the outcome of a
decision rendered under a negotiated grievance procedure is outside the
purview of EEOC regulations and should be rejected. Except in limited
circumstances, the EEO process is not a mechanism to attack negotiated
grievance procedures. Ellis v. United States Postal Service, EEOC Request
No. 05920011 (March 12, 1992).
The Commission finds that claims (1), (2) and (4) represent a collateral
attack on the grievance process. In claim (1), complainant challenges
the impartiality of the grievance deciding manager which allegedly
reversed the initial decision in favor of complainant. In claims (2)
and (4), complainant expresses his dissatisfaction with the outcome of
his grievance.
The proper forum for complainant to have raised his challenges to
actions which occurred during the grievance proceeding was at that
proceeding itself. It is inappropriate to now attempt to use the EEO
process to collaterally attack actions or decisions which were part of the
grievance process. Accordingly, the Commission finds that complainant's
claims fails to state a claim under 29 C.F.R � 1614.107(a)(1) because
they represent a collateral attack on grievance procedures.
Claim (3)
Complainant claims that on April 12, 1999, a manager requested
that he ask during a meeting who was retiring in the near future.
Complainant stated that he refused to ask the question and replied:
�that is age discrimination. That is a suicide question. I will not
do that.� The Commission has repeatedly found that remarks or comments
unaccompanied by a concrete agency action are not a direct or personal
deprivation sufficient to render an individual aggrieved for the purposes
of title VII. See Backo v. United States Postal Service, EEOC Request
No. 05960227 (June 10, 1996); Henry v. United States Postal Service,
EEOC Request No. 05940695 (February 9, 1995). Complainant has failed to
show that the April 12, 1999, incident was followed by a concrete action.
There is no indication in the record that complainant suffered a personal
loss or harm to a term, condition or privilege of his employment.
Accordingly, the agency's decision dismissing complainant's complaint,
which has been redefined as discussed above, is hereby AFFIRMED for the
reasons set forth herein.
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
August 6, 2002
__________________
Date