Jewel Ford, Complainant,v.Louis Caldera, Secretary, Department of the Army, Agency.

Equal Employment Opportunity CommissionNov 30, 2000
01995786 (E.E.O.C. Nov. 30, 2000)

01995786

11-30-2000

Jewel Ford, Complainant, v. Louis Caldera, Secretary, Department of the Army, Agency.


Jewel Ford v. U.S. Department of the Army

01995786

November 30, 2000

.

Jewel Ford,

Complainant,

v.

Louis Caldera,

Secretary,

Department of the Army,

Agency.

Appeal No. 01995786

Agency No. BHEIFO-99-06-J-0350

DECISION

Complainant filed a timely appeal with this Commission from an agency's

decision dated June 14, 1999, dismissing her complaint of unlawful

employment discrimination brought under Title VII of the Civil Rights

Act of 1964, as amended, 42 U.S.C. � 2000e et seq.<1> In her complaint,

complainant claims that she was subjected to discrimination on the bases

of race and reprisal when during the course of her Merit System Protection

Board (MSPB) hearing, agency armed guards harassed and intimidated her,

her witnesses, and her attorney.

The agency dismissed the complaint on the grounds that it was now moot

because the military base where complainant and the guards had been

employed was now closed, precluding a reoccurrence.

On appeal, complainant argues that the MSPB case included a discrimination

claim, and that the agency improperly sent armed guards to the hearing as

an act of retaliation against complainant and her attorney for engaging

in protected activity.

Review of the record discloses a portion of the MSPB hearing transcript

in which complainant's attorney questions the MSPB administrative judge

about the presence of the agency's armed guards. The administrative

judge responds that the agency had requested the guards, and then refused

to answer any more questions. After the MSPB hearing, by letter dated

February 5, 1999, complainant's attorney complained to the MSPB's senior

administrative judge about the presence of the armed guards and their

actions. The MSPB's senior administrative judge responded in a letter

dated March 5, 1999, indicating that the matter had been investigated,

and that the MSPB administrative judge who conducted the hearing properly

exercised her discretion when she permitted the agency to have armed

guards at the hearing.

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); Lingad v. United States Postal Service, EEOC

Request No. 05930106 (June 25, 1993).

Here, the issue regarding the presence of the armed guards arose during

the course of an MSPB hearing, and was then investigated by the MSPB in

response to a complaint filed with the MSPB's senior administrative

judge. The MSPB then determined that the administrative judge acted

properly in allowing the guards to be present during the hearing as

requested by the agency. It is inappropriate to now attempt to use the

EEO process to collaterally attack actions which occurred during the

MSPB process.

Therefore, we find that while the agency dismissed the instant complaint

on the grounds of mootness, the instant complaint is more properly

analyzed in terms of whether it states a claim. As discussed above, the

complaint constitutes an impermissible collateral attack on the MSPB

process and fails to state a claim. See 29 C.F.R. � 1614.107(a)(1).

Accordingly, the agency's final decision dismissing complainant's

complaint is AFFIRMED.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0900)

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

November 30, 2000

__________________

Date

CERTIFICATE OF MAILING

For timeliness purposes, the Commission will presume that this decision

was received within five (5) calendar days after it was mailed. I certify

that this decision was mailed to complainant, complainant's representative

(if applicable), and the agency on:

__________________

Date

______________________________

1On November 9, 1999, revised regulations governing the EEOC's federal

sector complaint process went into effect. These regulations apply

to all federal sector EEO complaints pending at any stage in the

administrative process. Consequently, the Commission will apply

the revised regulations found at 29 C.F.R. Part 1614 in deciding the

present appeal. The regulations, as amended, may also be found at the

Commission's website at www.eeoc.gov.