0120113607
10-14-2011
Randolph S. Koch, Complainant, v. Eric H. Holder, Jr., Attorney General, Department of Justice, Agency.
Randolph S. Koch,
Complainant,
v.
Eric H. Holder, Jr.,
Attorney General,
Department of Justice,
Agency.
Appeal No. 0120113607
Agency No. USA-2010-00059
DECISION
Complainant filed a timely appeal with this Commission from the Agency's undated final decision dismissing a formal 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., Section 501 of the Rehabilitation Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq., and the Age Discrimination in Employment Act of 1967 (ADEA), as amended, 29 U.S.C. � 621 et seq.1
BACKGROUND
Complainant, a former federal employee with the Securities and Exchange Commission (SEC), contacted the Agency's EEO office to initiate EEO counseling on July 24, 2009.
On December 28, 2009, Complainant filed a formal complaint. Therein, Complainant claimed that he was discriminated against on the bases of religion (Jewish), age (62), and reprisal for prior protected EEO activity when:
on June 2008 a named Assistant United States Attorney (AUSA) for the District of Columbia, had served as counsel for the SEC, and had allegedly raised improper questions concerning time and attendance during a deposition of a pending civil action before the United States District Court. Complainant stated that the named AUSA inappropriately shared Complainant's responses to her questions with the SEC, and that lead to his removal from federal service.
In its final decision, the Agency dismissed the complaint for failure to state a claim finding that Complainant lacked standing to file a complaint because he was not an employee or applicant for employment with the Department of Justice.
Complainant's formal complaint was properly dismissed pursuant to 29 C.F.R. � 1614.107(a)(1), for failure to state a claim. 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). Complainant's claims all stem from his civil action against the SEC. The proper forum for Complainant to have raised his challenges to actions which occurred as part of his civil action, was at that proceeding itself. It is inappropriate to now attempt to use the EEO process to collaterally attack actions associated with the civil action.
Accordingly, the Agency's final decision dismissing Complainant's complaint is AFFIRMED.
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
10/14/2011
__________________
Date
1 On appeal, Complainant asserts and the Agency did not dispute that he received the final Agency decision on or about late June 2011. The Commission, therefore, finds that Complainant's appeal is timely.
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2
01-2011-3607
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013