01991188
02-01-2001
John F. Ayala v. Department of the Army
01991188
February 1, 2001
.
John F. Ayala,
Complainant,
v.
Gregory R. Dahlberg,
Acting Secretary,
Department of the Army,
Agency.
Appeal No. 01991188
Agency No. BHAAFO9807I0260
DECISION
Complainant filed a timely appeal with this Commission from an agency
decision to dismiss his 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. In its dismissal, the agency
defined complainant's claims as alleging harm on the basis of reprisal
for prior EEO activity when:
An illegal and discriminatory assessment was performed on complainant
after complainant filed an appeal with the Merit Systems Protection Board;
and
The Management Employee Relations Specialist purposefully misdirected
complainant to file a discrimination complaint in the MSPB arena.
The agency dismissed the complaint for failure to state a claim, finding
that complainant had engaged in no prior EEO activity. On appeal,
complainant argues that the actions were not taken against him until he
filed a complaint with the MSPB.
In his formal complaint, complainant added the basis of national origin.
Nonetheless, his claims are a collateral attack to the MSPB and grievance
processes. In a letter to his facility Commander dated March 25, 1998,
complainant took issue with the processing of his case before the MSPB and
grievance concerning nonselection for a Supervisory Computer Specialist
position. Specifically, complainant argued that the agency conducted an
assessment of his qualifications for the position during discovery, and
used its findings in arguments before the MSPB. It is this assessment,
prepared in preparation of the MSPB appeal, that complainant alleges as
harmful in claim (1).
EEOC Regulations require the dismissal of complaints that fail to state
a claim. See 29 C.F.R. � 1614.107(a)(1). To state a claim, complainant
must allege present harm inflicted on the basis of race, sex, religion,
national origin, age, disability, or prior protected activity. See Diaz
v. Department of the Air Force, EEOC Request No. 05931049 (April 21,
1994). 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). The proper forum for
complainant to have raised his challenges to actions was at that
proceeding itself. It is inappropriate to now attempt to use the EEO
process to collaterally attack actions which occurred during the MSPB
process.
CONCLUSION
Accordingly, the agency's dismissal 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
February 1, 2001
__________________
Date