01991658
09-09-1999
Theodore McGary, Appellant, v. Louis Caldera, Secretary, Department of the Army, Agency.
Theodore McGary v. Department of the Army
01991658
September 9, 1999
Theodore McGary, )
Appellant, )
) Appeal No. 01991658
v. )
) Agency No. AQWFDF091010320
Louis Caldera, )
Secretary, )
Department of the Army, )
Agency. )
)
DECISION
INTRODUCTION
Appellant filed an appeal with this Commission from a final agency
decision concerning his complaint of unlawful employment discrimination
in violation of Title VII of the Civil Rights Act of 1964, as amended,
42 U.S.C. �2000e et seq. The appeal is accepted in accordance with EEOC
Order No. 960, as amended.
ISSUE PRESENTED
The issue on appeal is whether the agency properly dismissed appellant's
complaint for failure to state a claim and raising a matter already
decided by the agency.
BACKGROUND
Appellant filed a formal complaint on August 17, 1998, alleging
discrimination on the bases of race (Black) and reprisal (prior EEO
activity) when, (1) on June 5, 1998, the agency issued a final decision,
in response to his May 12, 1998 grievance, which did not comply with the
provisions of the Department of Defense Administrative Grievance System
and, (2) on or about June 9, 1998, during an appointment to discuss his
decision and other management concerns, the colonel failed to accord him
(appellant) the same benefit of discourse granted to all employees.
In its final agency decision, the agency dismissed the complaint for
failure to state a claim upon concluding that it raised issues that has
already been decided by the agency. This appeal followed.
ANALYSIS AND FINDINGS
EEOC Regulation 29 C.F.R. �1614.107(a) provides, in relevant part, that
an agency shall dismiss a complaint, or portion thereof, that fails to
state a claim under �1614.103 or �1614.106(a) or states the same claim
that is pending before or has been decided by the agency.
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;
�1614.106(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).
The Grievance Procedure - Allegation (1)
In the present case, the evidence reveals that appellant filed a
grievance with the agency after his supervisor issued him a five day
suspension for uncooperative, disrespectful, and defiant behavior.
After reviewing appellant's grievance, the agency upheld the suspension.
In his formal complaint, appellant alleged that, in issuing the grievance
decision, the agency failed to consider all relevant evidence as it was
required to do under the Department of Defense's Directive 1400.25-M,
Administrative Grievance System (December 20, 1995). However, as we have
held, a challenge to an evidentiary ruling in a grievance process fails
to state a claim as an EEO complaint. See Lingad v. United States Postal
Service, EEOC Request No. 05930106. Such allegations are characterized
as collateral attacks which, by definition, involve challenges to other
forums' proceedings. While the Commission has recognized very narrow
exceptions<1>, generally, such claims are prohibited. In this case, a
narrow exception is not applicable. Therefore, we find that the agency's
decision to dismiss this allegation pursuant to 29 C.F.R. �1614.107(a)
was correct.
The Benefit of Discourse - Allegation 2
In documents submitted with his formal complaint, appellant contends
that management has an open door policy, accorded to all employees, which
allows for the expression of concerns. He believes that he was treated
differently than similarly situated employees when he was not allowed to
discuss the agency's decision to uphold his suspension. As both parties
point out, the agency did agree to meet with appellant to discuss this
and other issues. However, shortly after the meeting started, it ended
abruptly when appellant expressed, in a loud voice according to the
agency, displeasure with the leadership. Because the agency did meet
with appellant, as it would have other employees, we hold that he was
not treated differently than others similarly situated. Presumably, the
agency's open door policy does not mean that an employee has free reign
to say whatever he or she pleases without consequences. Accordingly, we
find that the agency's decision to dismiss this allegation for failure
to state a claim was appropriate.
CONCLUSION
Based on the foregoing, the decision of the agency is proper and is,
therefore AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M0795)
The Commission may, in its discretion, reconsider the decision in this
case if the appellant or the agency submits a written request containing
arguments or evidence which tend to establish that:
1. New and material evidence is available that was not readily available
when the previous decision was issued; or
2. The previous decision involved an erroneous interpretation of law,
regulation or material fact, or misapplication of established policy; or
3. The decision is of such exceptional nature as to have substantial
precedential implications.
Requests to reconsider, with supporting arguments or evidence, MUST
BE FILED WITHIN THIRTY (30) CALENDAR DAYS of the date you receive this
decision, or WITHIN TWENTY (20) CALENDAR DAYS of the date you receive
a timely request to reconsider filed by another party. Any argument in
opposition to the request to reconsider or cross request to reconsider
MUST be submitted to the Commission and to the requesting party
WITHIN TWENTY (20) CALENDAR DAYS of the date you receive the request
to reconsider. See 29 C.F.R. �1614.407. All requests and arguments
must bear proof of postmark and 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 filed on the date it is received
by the Commission.
Failure to file within the time period will result in dismissal of your
request for reconsideration as untimely. If extenuating circumstances
have prevented the timely filing of a request for reconsideration,
a written statement setting forth the circumstances which caused the
delay and 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).
RIGHT TO FILE A CIVIL ACTION (S0993)
It is the position of the Commission that 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.
You should be aware, however, that courts in some jurisdictions have
interpreted the Civil Rights Act of 1991 in a manner suggesting that
a civil action must be filed WITHIN THIRTY (30) CALENDAR DAYS from the
date that you receive this decision. To ensure that your civil action
is considered timely, you are advised to file it WITHIN THIRTY (30)
CALENDAR DAYS from the date that you receive this decision or to consult
an attorney concerning the applicable time period in the jurisdiction
in which your action would be filed. In the alternative, you may file a
civil action AFTER ONE HUNDRED AND EIGHTY (180) CALENDAR DAYS of the date
you filed your complaint with the agency, or filed your appeal with the
Commission. 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. Filing a civil
action will terminate the administrative processing of your complaint.
RIGHT TO REQUEST COUNSEL (Z1092)
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:
Sept. 9, 1999
____________________________________
DATE Carlton M. Hadden, Acting Director
Office of Federal Operations
1 See Ellis v. United States Postal Service, EEOC Request No. 05920011
(March 12, 1992) (discriminatory application of grievance process may
state a claim), O'Neal v. United States Postal Service, EEOC Request
No. 05900620 (August 30, 1990) (discriminatory failure to process a
workers' compensation claim by failing to provide necessary information
to the Department of Labor states a claim).