0520090035
01-22-2009
Keith Fisher, Complainant, v. Michael B. Mukasey, Attorney General, Department of Justice, Agency.
Keith Fisher,
Complainant,
v.
Michael B. Mukasey,
Attorney General,
Department of Justice,
Agency.
Request No. 0520090035
Appeal No. 0120082651
Agency No. P20080141
DENIAL
Complainant timely requested reconsideration of the decision in
Keith Fisher v. Department of Justice (Federal Prisons), EEOC Appeal
No. 0120082651 (August 7, 2008). EEOC Regulations provide that the
Commission may, in its discretion, grant a request to reconsider any
previous Commission decision where the requesting party demonstrates 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. See 29 C.F.R. � 1614.405(b).
At the time of the events at issue, complainant was employed as
a Recreation Specialist, GS-9, at the Federal Bureau of Prison's
correctional institution in El Reno, Oklahoma. In his complaint,
complainant alleged that he was subjected to discrimination based on
his race (black)1 when:
1. in September 2007, he was subject to an Office of Inspector General
(OIG) investigation [involving improper mailing of inmate mail]; and on
two dates he had to perform job assignments that conflicted with this
in that one involved contact with an inmate's locker who was connected
to the allegation of staff misconduct, and the other involved mailing
out inmate hobby items,
2. in October 2007, the Lieutenant who initiated the OIG investigation
made a comment to complainant's co-workers that he did not understand
why the union wanted to protect people like complainant who got their
hand caught in the cookie jar;
3. in November 2007, he was subjected to intimidation when the
Captain bumped into him and stated in a disgusted voice "excuse me"
to complainant; and
4. in December 2007, he was subjected to a shakedown while bringing
bingo holiday prizes into the institution.2
Complainant appealed the dismissal to this Commission. The previous
decision affirmed the agency's dismissal. Complainant then filed the
instant request for reconsideration.
In his complaint regarding claim 1, complainant alleged that on
September 13, 2007, he was subjected to an interrogation for about an
hour as part of an OIG investigation into alleged misconduct in the
recreation department. Complainant alleged that only he and another
black staff member were questioned. He alleged that the OIG agent who
questioned him was intimidating, berating, accused him of being guilty
and showed him a picture of complainant wearing a tank top and earrings.
Complainant stated he thought all the recreation staff should have been
questioned, but were not. Complainant was eventually cleared, and no
charges were filed against him or other disciplinary action initiated.
In EEOC Appeal No. 0120082651, the Commission noted the long-standing
principle 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 previous decision found that the proper forum
for complainant to have raised his challenges to actions related to a
potential criminal proceeding, of which an office of Inspector General
(IG) investigation is a part, is generally within that proceeding
itself. Hence, we affirmed the dismissal of claim 1 as a collateral attack
on the OIG investigatory process. On reconsideration, we find no reason
to change this decision. A thorough examination of the complaint and
related EEO counseling report, as well as the statement submitted in the
original appeal, reveals that complainant was directly challenging the way
in which the OIG investigation was conducted-how he was chosen as a target
for interrogation and the manner in which the interrogation was conducted.
Claim 1, therefore, is a direct collateral attack on the OIG investigatory
process and, under the facts of this case, appropriately dismissed.
The previous decision found that the remaining claims did not rise to the
level of actionable harassment. Again, on reconsideration, we affirm our
previous decision. In his request to reconsider, complainant contends
that once he was wrongly implicated for improper mailing of inmate mail,
co-workers avoided him and he was subjected to harassing comments such
as "Your still here? You'd better call Reverend Jesse Jackson and the
NAACP," "You need strips to go with your recreational shirt," and a racial
epithet. But these claims were not defined by the agency as part of his
complaint in the FAD, and complainant did not contest this on appeal.
After reconsidering the previous decision and the entire record, the
Commission finds that the request fails to meet the criteria of 29
C.F.R. � 1614.405(b), and it is the decision of the Commission to deny
the request. The decision in EEOC Appeal No. 0120082651 remains the
Commission's final decision. There is no further right of administrative
appeal on the decision of the Commission on this request.
COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (P0408)
This decision of the Commission is final, and there is no further right
of administrative appeal from the Commission's decision. 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.
RIGHT TO REQUEST COUNSEL (Z1008)
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 from the Court that
the Court appoint an attorney to represent you and that the Court also
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 with the
Court 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
January 22, 2009
__________________
Date
1 In his request for reconsideration, complainant indicates that
his complaint also contained an allegation of reprisal. However, an
examination of the complaint and the entire record submitted during his
original appeal does not reveal he ever raised a reprisal allegation in
addition to his race discrimination claim.
2 The wording of the listed claims varies in some detail from the
wording in our appeal decision. The wording herein is consistent with
the language in the complaint, as well as complainant's discussion of
the claims on appeal.
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0520090035
U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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0520090035