0120090066
02-27-2009
Martin F. Salazar, Complainant, v. Stephen Chu, Secretary, Department of Energy, Agency.
Martin F. Salazar,
Complainant,
v.
Stephen Chu,
Secretary,
Department of Energy,
Agency.
Appeal No. 0120090066
Agency No. 08-0032-SR
DECISION
Complainant filed a timely appeal with this Commission from the final
agency decision dated September 9, 2008, dismissing his formal 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.
On August 20, 2008, complainant, a former agency employee, filed the
instant formal complaint. Therein, complainant claimed that he was
subjected to discrimination in reprisal for prior EEO activity.
In its September 9, 2008 final decision, the agency determined that in
his formal complaint, complainant "has set forth a wide-range, at times
confusing, but mostly a dated list of issues wherein he principally
alleged: (1) dissatisfaction/improper processing of his EEO complaints;
(2) a "history" of prior events/claims that have already been adjudicated;
and (3) that the OIG [Office of Inspector General] provided derogatory
information to the Georgia Department of Driver Services."
The agency noted that for a number of reasons, EEO counseling did not
take place. The agency stated that according to complainant, he alleged
that he repeatedly requested counseling but he and the EEO Counselor
were unable to meet. The agency also noted that according to the EEO
Counselor, she made numerous attempts to contact complainant; however
the EEO Counselor was unsuccessful.1 The agency stated, however, in
the interest of "judicial probity," it made a determination to issue the
complainant a right to file a formal complaint in order to move forward
with the processing of his complaint.
The agency dismissed the complaint pursuant to 29 C.F.R. � 1614.107(a)(8),
on the grounds that it allege dissatisfaction with the processing of
a previously filed EEO complaint, Agency Nos. 02(20)SR, 04-4965-SRO,
04-5021-SRO, 04-5033-SRO and 06-0049-SRO. Salazar v. Department of
the Energy, EEOC Appeal No. 0120063099 (March 2, 2007), req. for
reconsideration denied, Request No. 0520070416 (April 24, 2007).
The agency dismissed claim (3) on the alternative grounds of failure to
state a claim, pursuant to 29 C.F.R. � 1614.107(a)(1). The agency also
dismissed the entire formal complaint on the grounds of abuse of process,
pursuant to 24 C.F.R. � 1614.107(a)(9).
Claims (1) and (2) - Dissatisfaction with the Processing of a Prior
Complaint
EEOC Regulation 29 C.F.R. � 1614.107(a)(8) provides that an agency shall
dismiss claims alleging dissatisfaction with the processing of a prior
complaint. Dissatisfaction with the EEO process must be raised within
the underlying complaint, not a new complaint. See EEOC - Management
Directive 110 (as revised Nov. 9, 1999) 5-23, 5-25 to 5-26. A review of
the record reveals that the instant complaint focuses on complainant's
dissatisfaction with the processing of his prior EEO complaint (Agency
Nos. 02(20)SR, 04-4965-SRO, 04-5021-SRO, 04-5033-SRO and 06-0049-SRO).
Therefore, the Commission finds that the agency properly dismissed the
instant complaint pursuant to 29 C.F.R. � 1614.107(a)(8).
Because we affirm the agency's dismissal of claims (1) and (2) for the
reason stated herein, we find it unnecessary to address alternative
dismissal grounds (i.e. abuse of EEO process).
Claim (3) - Failure to state a claim
The Commission finds that claim (3) constitutes a collateral attack on
the OIG. The Commission has held that an employee cannot use the EEO
complaint process to lodge a collateral attack on another proceeding.
Hughes v. Social Security Administration, EEOC Request No. 05990698
(November 4, 1999). The appropriate forum for complainant to raise
challenges to actions which occurred during the investigation is with
the OIG. The Commission therefore finds that the agency properly
dismissed claim (3) pursuant to 29 C.F.R. � 1614.107(a)(1).
Because we affirm the agency's dismissal of claim (3) for the reason
stated herein, we find it unnecessary to address alternative dismissal
grounds (i.e. dissatisfaction with the processing of a prior complaint
and abuse of EEO process).
Accordingly, the agency's decision to dismiss the formal complaint was
proper and is AFFIRMED.
STATEMENT OF RIGHTS - ON APPEAL
RECONSIDERATION (M1208)
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 77960,
Washington, DC 20013. 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 (S0408)
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 (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
February 27, 2009
__________________
Date
1 The record reflects that complainant had filed several EEO complaints
and was familiar with the initial phases of the EEO process.
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U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION
Office of Federal Operations
P.O. Box 77960
Washington, DC 20013
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