Charles A. Pinson, Jr., Appellant,v.Louis Caldera, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionOct 5, 1999
01992011 (E.E.O.C. Oct. 5, 1999)

01992011

10-05-1999

Charles A. Pinson, Jr., Appellant, v. Louis Caldera, Secretary, Department of the Army, Agency.


Charles A. Pinson, Jr. v. Department of the Army

01992011

October 5, 1999

Charles A. Pinson, Jr., )

Appellant, )

) Appeal No. 01992011

v. ) Agency No. 09612G0630

)

Louis Caldera, )

Secretary, )

Department of the Army, )

Agency. )

)

DECISION

INTRODUCTION

Appellant filed an appeal with this Commission from a final agency

decision (FAD) 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. 960.001, as amended.

ISSUE PRESENTED

The issue on appeal is whether the agency properly dismissed appellant's

complaint for raising the matter in an appeal to the Merit Systems

Protection Board (MSPB) and for stating the same claim that is pending

before or has been decided by the agency or the Commission.

BACKGROUND

Appellant filed a formal complaint on April 4, 1998, alleging

discrimination on the bases of race (Caucasian), sex (male), reprisal,

and marital status when:

On April 3, 1998, appellant was terminated by the agency.

On September 3, 1998, MSPB Administrative Judge-1 and Administrative

Judge-2 conspired to unlawfully adjudicate his Constitutional and Civil

Rights by remanding his case.

On December 9, 1997, the agency conspired to deny appellant employment

opportunity when appellant was denied security clearance.

On December 10, 1997, an unlawful criminal investigation was conducted on

appellant which was used in the termination of appellant's employment.

On July 29, 1998, MSPB Administrative Judge-1 did not follow Supreme

Court rulings and stare decisis in her decision regarding appellant's

termination.

On June 1, 1998, MSPB Administrative Judge-2 reaffirmed Administrative

Judge-1's initial decision and would not readjudicate his sixty (60)

day suspension which ultimately lead to his termination.

On April 21, 1997, appellant was suspended for sixty (60) days in

retaliation for prior EEO activity.

On December 23, 1996, the EEO Office assigned an "uncleared" foreign

national, against appellant's specific request, to investigate appellant's

case regarding the removal of his security clearance.

On January 8, 1997, appellant was not selected for the position of

Computer/Electronics Engineer (GS-854/855-13).

On or about the year 1992, appellant's Section Chief asked appellant to

marry a Filipino woman who is the same race as the Chief's wife which

appellant believed to be a part of a "master race" plan created by the

Chief.

In September 1994, appellant was suspended for six (6) days because

appellant complained about a lack of support and the fact that his

supervisors were neglecting U.S. and International law in a combat zone.

On December 18, 1991, appellant was only given a "highly successful"

rating instead of "exceptional" which appellant felt he deserved.

On November 19, 1992, appellant was only given a "highly successful"

rating even though he felt that he should have received an "exceptional"

rating.

On November 18, 1993, appellant was only given a "highly successful"

rating instead of "exceptional" which appellant felt he deserved.

On March 3, 1996, appellant was denied a promotion to Computer/Electronics

Engineer (GS-0854/0855-13).

Appellant's Chief retaliated against him because appellant refused to

marry an Oriental woman.

On July 12, 1995, appellant was denied the opportunity to be the Technical

Point of Contact by his supervisor.

On November 1, 1994, January 13, 1995, and November 9, 1995, appellant

was denied an opportunity to work on the STAR-T project that appellant

had conceptualized and invented.

On or about December 1996, appellant and his organization at that time

were "written out" of the STAR-T contract by the project leader and

manager.

On January 31, 1996, an email was sent out indicating that the Secretary

of Defense of the Armed Forces of the United States was awarding the

Kuwait Liberation Medal (KLM) for those who participated in Operation

Desert Shield and Desert Storm between August 2, 1990 and August 31,

1993. Appellant qualified for this medal and submitted his Desert Storm

Temporary Duty Orders for processing. Appellant has yet to receive the

KLM nor has he received information as to why he has not received it

In its FAD, the agency dismissed appellant's complaint. The agency

dismissed allegations (A)-(H) in accordance with 29 C.F.R. �1614.107(d)

finding that appellant has raised the issue of his termination in an

appeal to the MSPB (Docket Number: DE-0752-98-0289-I-1). Allegations

(J), (K), (O)-(T) were dismissed pursuant to 29 C.F.R. �1614.107(a).

The agency found that appellant raised these issues in a formal complaint

of discrimination which was filed on October 2, 1996 and dismissed by

the agency in a FAD dated May 9, 1997. Finally, the agency dismissed

allegations (I) and (L)-(N) in accordance with 29 C.F.R. �1614.107(b)

finding that appellant did not raise these issues with an EEO Counselor.

This appeal followed.

ANALYSIS AND FINDINGS

Allegations (A)-(G)

A mixed case complaint is a complaint of employment discrimination filed

with a federal agency, related to or stemming from an action that can be

appealed to the MSPB. 29 C.F.R. �1614.302(a)(1). An aggrieved person may

initially file a mixed case complaint with an agency or may file a mixed

case appeal directly with the MSPB, pursuant to 5 C.F.R. �1201.151, but

not both. 29 C.F.R. �1614.302(b). EEOC Regulation 29 C.F.R. �1614.107(d)

provides that an agency shall dismiss a complaint or a portion of a

complaint where the complainant has raised the matter in an appeal to

the MSPB.

On April 30, 1998, appellant raised allegations pertaining to his removal

and the circumstances surrounding it in his appeal to MSPB of the agency's

action. On July 29, 1998, the MSPB issued appellant a decision which

affirmed the agency's removal of appellant. Administrative Judge-1

noted appellant's allegation of discrimination by the agency in its

termination of appellant based on the removal of his security clearance.

Administrative Judge-1 also found that MSPB had no jurisdiction to review

appellant's claim of discrimination made in connection with security

clearance decisions. After noting that the security clearance issue was

so intertwined with appellant's termination, Administrative Judge-1 found

that the appellant was properly terminated for his failure to maintain the

required security clearance and that the agency provided appellant with

adequate due process in both the revocation and removal proceedings.

At that time, appellant was notified of his right to have the MSPB

decision reviewed by the Board or the Court of Appeals. The record

indicates that appellant did not take such an action.

The Commission has the authority to determine whether the grant, denial,

or revocation of a security clearance was conducted in a discriminatory

manner in only limited circumstances. See Schroder v. Department of

Defense, EEOC Request No. 05930248 (April 14, 1994); see also Policy

Guidance on the use of the national security Exception contained in

703(g) of Title VII of the Civil Rights Act of 1964, as amended, EEOC

Notice N-915-041 (November 2, 1989). We are precluded from reviewing

the substance of a security clearance determination. See Department of

the Navy v. Egan, 484 U.S. 518 (1988); see also Lyons v. Department of

the Navy, EEOC Request No. 05890839 (March 22, 1990). Appellant raises

allegations (C) and (D) in his complaint. These allegations pertain to

the removal of appellant's security clearance. We find that appellant

has raised allegations of discrimination over which the Commission has

no jurisdiction. Therefore, the Commission finds that issues (C) and

(D) were properly dismissed by the agency.

As to allegation (A), appellant alleges discrimination when on April 3,

1998, he was terminated by the agency. Appellant raised this termination

in an appeal to the MSPB. The MSPB issued appellant a decision on

July 29, 1998, which affirmed the agency's removal of appellant.

Upon review of the record, we find that the MSPB did not address

appellant's allegation of discrimination. Therefore, in this particular

case, we find that the portion of appellant's complaint solely regarding

his termination was not addressed by the MSPB and the agency improperly

dismissed this allegation pursuant to 29 C.F.R. �1614.107(d).

As to allegation (G), appellant also raised allegations of discrimination

pertaining to his sixty (60) day suspension in his appeal to

MSPB of the agency's action (Docket Number DE-0752-97-0509-I-1 and

DE-0752-97-0509-S-1). On September 3, 1997, MSPB issued its initial

decision which dismissed his allegation finding that appellant and the

agency agreed to settle the appeal. Appellant raised this allegation for

a second time in his appeal to MSPB regarding his termination (Docket

Number DE-0752-98-0289-I-1). Therefore, the Commission finds that the

agency's FAD was proper when it dismissed allegation (G) pursuant to 29

C.F.R. �1614.107(d).

We find that allegations (B), (E), and (F) constitute a collateral

attack on the MSPB determinations. A collateral attack involves

a challenge to another forum's proceeding. Lau v. National Credit

Union Administration, EEOC Request No. 05950037 (March 18, 1996).

The Commission will not review allegations related to how an employee's

case was ultimately decided. See Bowie v. United States Postal Service,

EEOC Request No. 05910802 (February 4, 1992). Appellant's complaint

did not center on discrimination within the MSPB process. Instead,

as the record indicates, appellant merely alleged dissatisfaction with

the outcome of the MSPB process. Such allegations against the MSPB

decisions constitute a collateral attack and, therefore, the Commission

finds that allegations (B), (E), and (F) should be dismissed.

Allegation (H)

Allegation (H) fails to state a claim. Appellant filed a prior

EEO complaint regarding the removal of his security clearance.

He specifically requested that the EEO Office assign an investigator who

spoke and understood English. Appellant alleges discrimination when

the EEO office ignored his request and assigned a foreign national to

investigate his claim. The Commission finds that this allegation refers

to the process by which his EEO complaint was handled. Complaints

regarding the EEO complaint process are considered spin-off issues

that cannot stand alone as a separate complaint. This issue is to be

directed to the appropriate agency official responsible for the quality of

complaints processing. See EEOC Management Directive 110 (EEO MD-110),

p. 4-8 (October 22, 1992). 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. Therefore, we find

that allegation (H) is dismissed for failure to state a claim.

Allegation (I)

EEOC Regulation 29 C.F.R. �1614.107(b) states, in pertinent part, that

an agency shall dismiss a complaint or portion thereof which raises a

matter that has not been brought to the attention of an EEO Counselor,

and is not like or related to a matter on which the complainant has

received counseling. A later allegation or complaint is "like or related"

to the original complaint if the later allegation or complaint adds

to or clarifies the original complaint and could have reasonably been

expected to grow out of the original complaint during the investigation.

See Scher v. United States Postal Service, EEOC Request No. 05940702

(May 30, 1995).

Appellant noted on his formal complaint that he did not seek an EEO

Counselor prior to filing this complaint. Upon careful review, we find

that issue (I) was not addressed in any prior EEO complaint nor any EEO

Counselor's report dealing with the prior EEO complaint filed on October

20, 1996. Therefore, we find that this issue has not been raised to an

EEO Counselor. We note that even if the date appellant filed his formal

complaint is used as his date of EEO Counselor contact (April 4, 1998),

it would appear that allegation (I) is untimely as it occurred on July

8, 1997. As such, we find that allegation (I) was properly dismissed.

Allegations (J)-(T)

EEOC Regulation 29 C.F.R. �1614.107(a) provides that the agency shall

dismiss a complaint or a portion of a complaint that states the same claim

that is pending before or has been decided by the agency or Commission.

Appellant filed an EEO complaint on October 2, 1996 with the agency.

In that complaint, appellant included allegations of discrimination on

the bases of race (White), color (White), sex (male), and marital status

when:

Appellant did not adhere to management's master race concept that he

was selected to implement.

Appellant refused to marry a Filipino woman.

Appellant received a six (6) day suspension in September 1994.

Appellant was not give a fair rating when he received "Highly Successful"

when he felt he deserved "Exceptional" on December 18, 1991, November 19,

1992, and November 18, 1993.

Appellant was denied a promotion to Computer/Electronics Engineer

(GS-0854/0855-13) on March 3, 1996.

Appellant was denied the opportunity to be the Technical Point of Contact

on July 12, 1995, by appellant's supervisor.

Appellant was denied the opportunity to work on the STAR-T project.

Appellant and his organization were "written out" of the STAR-T statement

of work contract.

Appellant did not receive his KLM for participating in Operation Desert

Shield and Desert Storm.

These allegations of discrimination also appear in the appeal at hand

in allegations (J)-(T). The agency dismissed appellant's complaint

in its final decision in August 1997. The FAD provided appellant with

appeal rights. The evidence shows that appellant did not file any appeal

with the Commission. We find that the agency properly dismissed these

allegations pursuant to 29 C.F.R. �1614.107(a).

Allegations of Discrimination on the Basis of Marital Status

We note that one of the bases of discrimination indicated by appellant

was marital status. The Commission's regulations require that an agency

accept a complaint or allegation from any aggrieved employee or applicant

for employment who believes that he or she has been discriminated against

by that agency because of their race, color, religion, sex, national

origin, age or disabling condition. 29 C.F.R.�1614.103; �1614.106(a).

EEOC Regulation 29 C.F.R. �1614.107(a) provides that an agency shall

dismiss an allegation that fails to state a claim under �1614.103.

We find that appellant fails to state a claim with respect to his

contention that he was discriminated against because of his marital

status. This basis is not covered under our regulations and is not

addressed in this decision.

CONCLUSION

Accordingly, the decision of the agency is AFFIRMED regarding allegations

(B)-(T) and REVERSED regarding allegation (A) and REMANDED in accordance

with this decision and the proper regulations.

ORDER (E1092)

The agency is ORDERED to process the remanded allegations in accordance

with 29 C.F.R. �1614.108. The agency shall acknowledge to the appellant

that it has received the remanded allegations within thirty (30) calendar

days of the date this decision becomes final. The agency shall issue to

appellant a copy of the investigative file and also shall notify appellant

of the appropriate rights within one hundred fifty (150) calendar days

of the date this decision becomes final, unless the matter is otherwise

resolved prior to that time. If the appellant requests a final decision

without a hearing, the agency shall issue a final decision within sixty

(60) days of receipt of appellant's request.

A copy of the agency's letter of acknowledgment to appellant and a copy

of the notice that transmits the investigative file and notice of rights

must be sent to the Compliance Officer as referenced below.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0595)

Compliance with the Commission's corrective action is mandatory.

The agency shall submit its compliance report within thirty (30)

calendar days of the completion of all ordered corrective action. The

report shall be submitted to the Compliance Officer, Office of Federal

Operations, Equal Employment Opportunity Commission, P.O. Box 19848,

Washington, D.C. 20036. The agency's report must contain supporting

documentation, and the agency must send a copy of all submissions to

the appellant. If the agency does not comply with the Commission's

order, the appellant may petition the Commission for enforcement of

the order. 29 C.F.R. �1614.503 (a). The appellant also has the right

to file a civil action to enforce compliance with the Commission's

order prior to or following an administrative petition for enforcement.

See 29 C.F.R. ��1614.408, 1614.409, and 1614.503 (g). Alternatively,

the appellant has the right to file a civil action on the underlying

complaint in accordance with the paragraph below entitled "Right to File

A Civil Action." 29 C.F.R. ��1614.408 and 1614.409. A civil action for

enforcement or a civil action on the underlying complaint is subject to

the deadline stated in 42 U.S.C. �2000e-16(c) (Supp. V 1993). If the

appellant files a civil action, the administrative processing of the

complaint, including any petition for enforcement, will be terminated.

See 29 C.F.R. �1614.410.

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 (T0993)

This decision affirms the agency's final decision in part, but it also

requires the agency to continue its administrative processing of a

portion of your complaint. You have the right to file a civil action

in an appropriate United States District Court on both that portion of

your complaint which the Commission has affirmed AND that portion of the

complaint which has been remanded for continued administrative processing.

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. 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 (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:

Oct. 5, 1999

DATE Carlton M. Hadden, Acting Director

Office of Federal Operations