01A20957_r
12-12-2002
Ronald C. Bimes, Complainant, v. Kay Coles James Director, Office of Personnel Management, Agency.
Ronald C. Bimes v. Office of Personnel Management
01A20957
December 12, 2002
.
Ronald C. Bimes,
Complainant,
v.
Kay Coles James
Director,
Office of Personnel Management,
Agency.
Appeal No. 01A20957
Agency No. 01-10
DECISION
Complainant filed a timely appeal with this Commission from a July 30,
2001 final agency decision dismissing his complaint of unlawful employment
discrimination brought pursuant to Section 501 of the Rehabilitation
Act of 1973 (Rehabilitation Act), as amended, 29 U.S.C. � 791 et seq.
The Commission accepts the appeal. 29 C.F.R. � 1614.405.
In his complaint, complainant claimed that the agency improperly approved
his application for disability retirement because it lacked the required
supporting documentation, especially documentation confirming that
complainant's employing agency (Defense Finance and Accounting Service)
forced him to work without performance standards immediately prior to
his retirement. Complainant avers that he appealed this matter to the
agency's Disability Reconsideration and Appeals Division (DRAD), but
that the DRAD refused to render a final decision. Complainant further
claimed that he attempted to compel the agency to issue a determination,
in an appeal to the Merits System Protection Board (MSPB), but that the
MSPB declined jurisdiction over the matter. Complainant indicated that
he filed suit in federal court against his employing agency regarding
the MSPB dismissal, noting that the federal judge amended the complaint
to reflect that both complainant's employing agency and the MSPB were
proper respondents.
Regarding the instant matter, complainant asserted that he is now filing
an EEO complaint in an effort to compel DRAD to issue a final decision,
because the DRAD's purported failure to issue a final decision may
constitute a violation of the Rehabilitation Act.
In its final decision, the agency dismissed the complaint on the grounds
that it concerned the same matters raised in the above referenced
federal court complaint, pursuant to 29 C.F.R. � 1614.107(a)(3) .
Complainant now files an appeal from this determination.
The regulation set forth at 29 C.F.R. � 1614.107(a)(3) allows for the
dismissal of a complaint that is pending in a United States District
Court in which the complainant is a party. After review, we find that
the matter raised in complainant's civil action concerns the procedural
issue of whether the MSPB properly dismissed his appeal due to lack of
jurisdiction, and does not concern the gravamen of the instant claim.
We therefore find that the agency improperly dismissed the captioned
complaint under 29 C.F.R. � 1614.107(a)(3) .
We nevertheless find that the captioned complaint must be dismissed
on the grounds of failure to state a claim, pursuant to 29 C.F.R. �
1614.107(a)(1), because it constitutes a collateral attack on the DRAD
process. It is well established 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). In this case, complainant seeks to compel issuance of a decision
from the DRAD, presumably in his favor, via an order from the Commission.
However, the proper forum for complainant to pursue this matter is with
the agency or the DRAD itself. It is inappropriate to now attempt to
use the EEO process to collaterally attack the DRAD process.
Accordingly, for the reasons set forth above, we conclude that the agency
properly dismissed the captioned complaint, and we AFFIRM its dismissal.
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
December 12, 2002
__________________
Date